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Dietary Guidelines Pertinent to Confectioners How does confectionery fare in the Guidelines? There are few specific mentions of candy, and the Guidelines generally emphasize the importance of an overall healthy diet. David R. Joy Keller and Heckman LLP g The federal government recently issued the This year’s edition of the Guidelines Dietary Guidelines for Americans for 2005. weighs in at 70 pages. It is understood that Every five years, these guidelines essentially the document will not be directly studied urge us to eat our spinach and ease up on by consumers. Rather, the Guidelines are the candy.This article explores the substance expected to be used by policymakers, nutri- of the 2005 Guidelines, how they differ from tionists and nutrition educators. A 12-page previous editions and their potential impact booklet entitled Finding Your Way to a on the confectionery industry. Healthier You was issued as a distillation of The National Nutrition Monitoring and the Guidelines, aimed directly at consumers. Related Research Act of 1990 directs the Realistically, a very small percentage of Secretaries of Health and Human Services American consumers can be expected to (HHS) and the U.S. Department of Agri- see this booklet, and fewer still will study culture (USDA) to publish jointly a report it and alter their diets accordingly. entitled Nutrition and Your Health: Dietary One could argue on this basis that the Guidelines for Americans at least every five Guidelines are an expensive, somewhat aca- years.The sixth edition of the Dietary Guide- demic and sometimes acrimonious exercise, lines for Americans was released on Janu- with little real-world consequence. But the ary 12, 2005. The Guidelines have a direct Guidelines likely do have some impact, and impact on the policies of the federal gov- the confectionery industry should expect ernment in a few ways. For example, the the Guidelines’ recommendations to filter nutrition standards of the National School into the American consciousness over time, Lunch Program are based on the Guidelines. if not immediately. Of course, there are two Ultimately, the Guidelines are intended to separate questions here. Will the recom- guide or influence consumer behavior.They mendations in the Guidelines be widely dis- do not have a significant, direct regulatory seminated and understood? More impor- impact on the food industry. tantly, will they be followed? David Joy is a partner at the law firm of Keller and Heckman LLP. He specializes in food and drug law with emphasis on the domestic and international regulation of food, food additives, food labeling, pesticides and medical devices. David R. Joy The Manufacturing Confectioner • May 2005 75 ® Dietary Guidelines Pertinent to Confectioners The Guidelines repeatedly recommend limited consumption of foods containing added sugars, but do not rule out consumption of sweets altogether. SUBSTANCE OF THE 2005 GUIDELINES XXXXXXXXX cial focus on added sugars as opposed to The Guidelines are organized in chapters total sugar intake including both added covering discrete areas including weight sugars and sugars that occur naturally in management, physical activity, food groups foods. The Guidelines address this ques- to encourage, fats and carbohydrates. If a tion, saying “the greater the consumption single message can be derived from the of foods containing large amounts of added Guidelines, it is that Americans should limit sugars, the more difficult it is to consume their overall calorie intake, and this means enough nutrients without gaining weight.” making more careful food choices in order In other words, added sugar is blamed for to ingest adequate amounts of important higher calorie intake while not contribut- micronutrients and macronutrients. ing nutrients. One might ask why there should be spe- How does confectionery fare in the This is a point that seems to echo the Guidelines? There are few specific men- views of the Center for Science in the Pub- tions of candy, and the Guidelines generally lic Interest (CSPI). CSPI has petitioned emphasize the importance of an overall the Food and Drug Administration to healthy diet, without naming specific foods require a separate nutrition labeling dec- to avoid. The chapter covering carbohy- laration for added sugars. The FDA has drates is probably of most relevance to the not thus far taken steps to grant this peti- confectionery industry. tion.The Guidelines go so far as to explain: ple, a person aiming for consumption of The Nutrition Facts Panel on the food label provides the amount of total sugars but does not list added sugars separately. People should examine the ingredient list to find out whether a food contains added sugars. 2,000 calories per day, based upon his or It is not new or surprising that the Guide- her age and activity level, should choose lines discourage heavy consumption of nutrient-dense foods. If that person is able foods with added sugars. The fact remains, to achieve his or her recommended nutri- however, that good nutrition is set out in ent intake without hitting 2,000 calories, the Guidelines as a matter of achieving the remaining calories, referred to as the adequate intake of nutrients while limit- discretionary calorie allowance, create ing total calorie intake to an acceptable room in the diet for added sugars, fats and level. No single food or food type will make alcohol. For most consumers, however, the or break a good diet. One can possibly discretionary calorie allowance is small. In interpret the above comment in two ways: the example of a careful consumer aiming as suggesting there should be a separate for 2,000 calories per day, 267 calories, or listing for added sugars in the nutrition roughly one candy bar per day, might be facts panel because they are of special con- available for fats and sweets in combina- cern, or as suggesting, sensibly, that an tion. An active teenage male, aiming for interested consumer can readily determine 3,200 calories per day, has a larger discre- from the ingredient declaration whether tionary calorie allowance, at 648 calories. a food contains added sugar. The Guidelines repeatedly recommend limited consumption of foods containing added sugars, but do not rule out consumption of sweets altogether. For exam- 76 May 2005 • The Manufacturing Confectioner ® Dietary Guidelines Pertinent to Confectioners If there is any good news for candy in antioxidants, in the context of explaining a the chapter dealing with carbohydrates, it general preference for receiving nutrients is possibly that sweetened beverages through food rather than through dietary receive more blame than candy as con- supplements. This is a small acknowledg- tributing to high calorie intake in some ment that there may be many substances individuals. Figure 1 showsthe major present in food that contribute to good sources of added sugars in the American health in ways we do not yet fully under- diet. Regular soft drinks are said to account stand. Confectionery is not generally seen for 33 percent of all added sugar in the as a source of phytochemicals in the diet, diet, while “sugar and candy” accounts for and it may be a bit of a stretch to bring only 16.1 percent of all added sugar. A confectionery into the scope of this state- statement on page 36 of the report makes ment. However, research into the beneficial a more explicit message regarding an asso- effects of flavanols in chocolate has been ciation between calorically sweetened bev- well received and can be cited as a reason erages and weight gain. A person seeking to include chocolate in a sensible and var- to follow the Guidelines, or move in the ied diet. The 2005 Guidelines can be expected to shape federal policy and be studied by some professional nutritionists, but they cannot realistically be expected to impact consumer behavior in a direct way. direction of the Guidelines, might sensibly determine that switching to sugar-free soft WHAT’S NEW? drinks would adequately reduce total calo- The 2005 Guidelines do not differ drasti- rie intake. cally from the 2000 edition. This is not Another aspect of the Guidelines that unexpected because advances in the sci- might fall into the “silver lining” category ence of nutrition do not occur rapidly. for confectionery is its implicit repudia- Some differences worth noting follow. tion of the Atkins Diet. Dr.Atkins receives As stated above, the 2005 edition of the no specific mention, but the overwhelm- Guidelines is not aimed directly at con- ing emphasis throughout the report is on sumers. This is probably an inevitable achieving proper nutrition through a var- development, as the Guidelines have got- ied diet, particularly as a long-term goal. In ten more detailed and complex with each an apparent response to the popularity of new edition. The Guidelines are packed the Atkins Diet, the Guidelines state: with much more information and technical When it comes to body weight, it is calories that count — not the proportions of fat, carbohydrates, and protein in the diet … Diets that provide very low or very high amounts of protein, carbohydrates or fat are likely to provide low amounts of some nutrients and are not advisable for long-term use. Although these kinds of weight-loss diets have been shown to result in weight reduction, the maintenance of a reduced weight ultimately will depend on a change in lifestyle. detail than was included in the 1980 edition. A summary booklet, Finding Your Contribution to Added Sugars Intake Percent of total added sugars consumed Food groups that contribute more than 5 percent of the added sugars to the American diet in decreasing order. The first chapter of the Guidelines makes Food Categories Regular soft drinks Sugars and candy Cakes, cookies, pies Fruit drinks (fruitades and fruit punch) Dairy desserts and milk products (ice cream, sweetened yogurt and sweetened milk) Other grains (cinnamon toast and honey-nut waffles) a brief mention of phytochemicals and Figure 1 (percent) 33.0% 16.1% 12.9% 9.7% 8.6% 5.8% ® The Manufacturing Confectioner • May 2005 77 Dietary Guidelines Pertinent to Confectioners Obesity is caused by the combination of a sedentary lifestyle and poor diet; it is not caused by any one bad food. Way to a Healthier You, accompanies the in hand. Obesity is caused by the combi- 2005 Guidelines and is intended to be more nation of a sedentary lifestyle and poor consumer-friendly. Importantly, the 2005 diet; it is not caused by any one bad food. Guidelines can be expected to shape fed- The 2005 Guidelines arguably stray at eral policy and be studied by some (not times into topics that are not strictly mat- all) professional nutritionists, but they can- ters of nutrition. For example, an entire not realistically be expected to impact con- chapter is devoted to food safety. One key sumer behavior in a direct way. recommendation in the chapter on carbo- Another significant difference in the hydrates is to “reduce the incidence of den- 2005 Guidelines is the expected emphasis tal caries by practicing good oral hygiene on obesity. When the federal government and consuming sugar- and starch-contain- first began issuing dietary guidance, the ing foods and beverages less frequently.” most important objectives were avoiding malnutrition and nutrient-deficiencyrelated diseases, such as scurvy and goiter, MEDIA REACTION, COMMENTARY AND CRITICISMX XXXXXXXXXXX X which at that time afflicted millions of For most Americans, the full extent of their Americans. People were urged to consume exposure to the Guidelines occurred on more food and a variety of agricultural January 13, 2005, in the form of newspa- produce, in a way that could only please per and television reports. The reporting food producers. Today, our life expectancy that occurred as the Guidelines were issued is longer and nutrient-deficiency diseases generally stated the substance of the are significantly less prevalent. Reflecting Guidelines in a straightforward way, with a changing health concerns, the association few doses of skepticism thrown in. between chronic illnesses and obesity takes Criticism of the Guidelines after their center stage in the 2005 Guidelines. The release might be placed into a few broad 2005 Guidelines include a strong emphasis on limiting total calorie intake as the primary means of body weight control. More so than in previous editions, the 2005 Guidelines emphasize that calorie categories: • Criticism that the Guidelines contain nothing new. • Criticism that the Guidelines are unre- alistic. requirements vary by individual and • Criticism that the Guidelines do not go depend on gender, age and physical activity level. Americans are urged to increase far enough in recommending radical changes in the American diet. their level of physical activity. To manage The first type of criticism was typified by body weight and prevent weight gain in headlines referring to the Guidelines as adulthood, Americans are urged to engage “repackaged” and commentary along the in “approximately 60 minutes of moder- lines of “as if you didn’t know: eat less, exer- ate- to vigorous-intensity activity on most cise more.” It is certainly true that the days of the week.” To sustain weight loss, Guidelines do not contain significant new 60 to 90 minutes of moderate-intensity revelations about nutrition, but this is physical activity may be needed. This is an because advances in nutrition science do important and essential acknowledgment not occur quickly. The Guidelines are cur- that proper nutrition and exercise go hand rently issued every five years, by law, and ® 78 May 2005 • The Manufacturing Confectioner Dietary Guidelines Pertinent to Confectioners they are simply intended to reflect the cur- This type of criticism tends to reveal that rent state of scientific knowledge and con- nutrition is a contentious and somewhat sensus. The Guidelines would probably politicized science. It would be difficult to remain reasonably up to date if they were find many passages in the 2005 Guidelines issued less frequently, possibly every ten that could not have been penned by the years. However, the purpose behind the Center for Science in the Public Interest Guidelines is not only to convey new infor- (CSPI).Those who feel that the food indus- mation, but also to focus attention on try enjoys an inappropriate degree of influ- healthy eating, and a government reminder ence over the wording of the Guidelines every five years is not necessarily excessive. are apparently looking for explicit con- The second type of criticism, that the demnations of bad foods. The Guidelines’ Guidelines are unrealistic, often focused gentle warning about sweetened bever- on the complexity of dietary advice gen- ages does not suffice.This type of criticism, erally and the unlikelihood that Ameri- however, misses the overall message of the cans looking to lose weight will achieve Guidelines (eat a variety of foods; achieve 60 to 90 minutes of exercise per day or adequate intake of nutrients; limit total that adults will drink three cups of (low- calorie intake; and exercise), and it is very fat) milk per day. This possibly points to difficult to fault this sensible and science- inherent difficulties associated with based message. Moreover, this type of crit- dietary advice. The Guidelines do icism seems to be based on incorrect acknowledge that “currently adherence assumptions that, one, there is no room in to the Dietary Guidelines is low in the the diet for pleasurable, less nutrient-dense U.S. population.” The sensible approach foods; and, two, consumers would actually taken by the 2005 Guidelines seems to be that they present sound advice based on The discretionary calorie allowance gives individuals following the Guidelines some flexibility to enjoy foods that contain added fats and sugars. eliminate “processed foods” if only the Guidelines recommended that they do so. current science, and they are aimed at nutritionists rather than consumers. The third general type of criticism is that the Guidelines do not go far enough. Particularly in the months and weeks leading up to the release of the 2005 Guidelines, CONSUMER BEHAVIOR Common sense as well as hard data tells us that American consumers will not eliminate candies and desserts from their diets. some newspaper articles included allega- As noted above, the Guidelines do not call tions that the Guidelines are influenced by for the total elimination of sweets. The dis- food industry lobbyists. A typical example cretionary calorie allowance gives indi- is a brief article that ran in the New York viduals following the Guidelines some flex- Times on January 5, 2005, under the head- ibility to enjoy foods that contain added line “Uncle Sam: Nutritionist.” In it, a nutri- fats and sugars. Since 1980, however, the tionist at the University of California, Guidelines have been recommending that Berkley, was said to have noted that the Americans “avoid too much sugar,” and Guidelines are “heavily influenced by the the Guidelines have gotten gradually food manufacturing industry” and was tougher on sugar from 1980 to the present. quoted as saying,“From what I understand, During that same time period, however, the Guidelines will be business as usual.” consumption data collected by the NPD ® The Manufacturing Confectioner • May 2005 79 Dietary Guidelines Pertinent to Confectioners Humans have been eating sweetened foods for centuries, and a government report could not change that. Group (a sales and marketing information Eating Occasions of Total Confections firm) does not show a noticeable down- 29.7 ward trend in consumption of total con- 22.5 22.1 22.4 28.0 26.7 26.4 21.8 21.9 23.2 23.8 23.5 24.6 25.9 26.7 25.0 25.2 23.6 24.4 25.9 25.0 fectionery or specific types of confectionery. For example, on a per capita basis, Americans consumed confectionery products about 25 times per year in 2004. In other words, considering both eaters and 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 Figure 2 noneaters of confectionery, the average number of confectionery eating occasions Eating Occasions of Chocolate per person in the United States was 25 in 2004. Twenty years earlier, in 1984, the 13.8 13.6 11.6 11.4 11.6 12.0 12.6 11.7 14.5 14.1 13.9 14.2 13.6 12.2 14.7 14.2 14.7 14.5 13.4 14.1 12.4 annual confectionery eatings per capita was 22.1. Data provided by the NPD Group are shown in Figure 2. Similar results are seen for specific types of confectionery. For total chocolate, 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 Figure 3 annual eatings per capita were 14.1 in 2004 and 11.6 in 1984, as shown in Figure 3. Approximately the same percentage of Americans enjoys confectionery today as in 1984. NPD reports that 29.7 percent of individuals in its sample reported eating confectionery at least once in a two-week period in 1984. In 2004, the figure was 30.6 percent. In other words, approximately behavior.As emphasized above, the Guidelines allow for the incorporation of sweets into a sensible diet. However, even if the Guidelines included a strong recommendation to eliminate sweets, American consumers would not be expected to respond accordingly. Humans have been eating sweetened foods for centuries, and a gov- 30 percent of Americans enjoyed a con- ernment report could not change that. A fectionery product at least once per two- dramatic example of consumers’ unre- week period in 1984, and the same is true sponsiveness to government health advice in 2004. is found in cigarette smoking. The Surgeon These figures provide a rough look at General first warned of the dangers asso- consumer behavior using the best avail- ciated with cigarette smoking in 1964, and able data.The information presented refers warning statements have appeared on cig- to number of eating occasions and does arette packages since the early 1970s. The not indicate the amount of food consumed Centers for Disease Control currently esti- per eating occasion. Certainly, however, if mates that 22.5 percent of all adults in the Americans were reducing their consump- United States smoke cigarettes. tion of confectionery based upon the Dietary Guidelines or for any other reason, that would be reflected in the data. This finding is consistent with a common-sense understanding of consumer 80 May 2005 • The Manufacturing Confectioner FUTURE The 2005 Guidelines do not differ greatly from the 2000 Guidelines, but are note- ® Dietary Guidelines Pertinent to Confectioners worthy for their emphasis on total calorie obesity litigation, such as lawsuits against intake and physical activity. The Guide- fast food restaurants. A plaintiff in such a lines should not have a significant or direct lawsuit might certainly cite the Guidelines regulatory impact on the food industry. as indicating, for example, that a particular They will likely be referenced as the Food dish contains a large dose of fat or total and Drug Administration (FDA) contin- calories when compared to a healthy daily ues to consider changes in its nutrition intake. However, anyone citing the Guide- labeling regulations. Prior to issuance of lines in that manner would need to pre- the 2005 Guidelines, FDA was already pare for strong rebuttal arguments that the considering various changes to the nutri- Guidelines also recommend a varied diet tion facts box such as giving more promi- and a healthy amount of exercise each day. nence to the total calorie declaration; Indeed, a sensible philosophy surround- requiring packaged foods that can be rea- ing the Guidelines would be that they pro- sonably consumed at one time to be vide an outstanding source of nutrition treated as a single serving; updating the established serving sizes generally; and updating the daily values for reported nutrients, for example, the expected amounts of total fat, saturated fat and carbohydrates in a 2,000-calorie daily diet. As FDA moves forward with these plans, the Guidelines may be cited, but the Guidelines themselves should not be considered responsible for these changes. advice, and the proper role of the govern- A sensible philosophy surrounding the Guidelines would be that they provide an outstanding source of nutrition advice, and the proper role of the government is simply to dispense this advice and require nutrition labeling on food packages. ment is simply to dispense this advice and require nutrition labeling on food packages. What individuals do with this information in a free society is a matter of personal choice. CONCLUSION If the food industry really had as much Likewise, efforts to reduce food adver- influence over the federal government as tising aimed at children are not likely to some commentators perceive, the Dietary be strongly influenced by the Dietary Guidelines would possibly not exist. Given Guidelines themselves. The Institute of that they do exist, the food industry should Medicine is currently undertaking a com- be pleased that the current edition of the prehensive study of the effects of food mar- Guidelines is fair, reasonable and based on keting on diets and health of children in good science. The Guidelines will certainly America. This effort will likely contribute not result in perceptible changes in the more to the discussion of food advertising consumption of confectionery in America. than will the Dietary Guidelines. The Fed- This is primarily for two reasons: few eral Trade Commission does not presently Americans will make a serious effort to have plans to restrict food advertising pattern their diets after the Guidelines, aimed at children, and, in fact, would not and, more importantly, the Guidelines appear to have authority to do so unless accommodate some consumption of plea- Congress acts to amend the Federal Trade surable foods within the discretionary calo- Commission Act. rie allowance, as well they should. I Some might wonder whether the Dietary Guidelines will play a role in any future Presented at the PMCA Production Conference The Manufacturing Confectioner • May 2005 81