Fruity Pebbles and Lucky Charms Threaten to Block “Healthy” Food Labeling Guidelines in Court – The Intercept

The makers of Fruity Pebbles, Froot Loops, Lucky Charms, and other popular cereal brands are bitterly lobbying against a new Food and Drug Administration proposal that would prevent them from labeling their products as “healthy.”

The proposed FDA rule mandates that foods labeled as healthy must contain a major food group — such as dairy, fruits, or whole grains — and must fit certain limits on saturated fat, sodium, and added sugars.

The rule limits cereals, for example, to no more than 2.5 grams of sugar per serving in order to be labeled as healthy — a restriction food manufacturers claim would exclude over 95 percent of ready-to-eat cereals on the market.

In response, processed food companies that produce a variety of snacks, baked goods, pastas, and frozen pizzas are challenging the rules before they are finalized by the agency. Among the most vocal food companies are producers of high-sugar cereals, which are largely marketed to children and have been criticized as a driver of the obesity epidemic in America.

In a joint filing made last month, the largest cereal producers in the country — General Mills, Kellogg’s, and Post Consumer Brands — decried the proposed nutritional criteria and threatened to file a lawsuit, challenging the guidelines as a violation of corporate free speech rights.

The rule, “if finalized in its present form,” the companies wrote, “would be open to legal challenge in that it violates the First Amendment by prohibiting truthful, non-misleading claims in an unjustified manner and also exceeds FDA’s statutory authority in several ways.”

The idea of a legal challenge may not be an idle threat.

The public comment docket includes a filing from the Washington Legal Foundation, a shadowy nonprofit that litigates esoteric and often controversial business interests. The group filed a letter in opposition in the form of a legal brief, laying out a broad case for a future court challenge against the FDA guidelines.

The organization contended that the healthy labeling requirements are an unconstitutional overreach of government power. Food companies, the Washington Legal Foundation argued, have “constitutionally protected commercial speech” rights covering their ability to use the term “healthy” to describe their added sugar products.

The FDA, the Washington Legal Foundation wrote in its brief, “cannot explain why consumers cannot make their own healthy decisions based on [nutrition labeling] data. Rather, it seeks to limit the food companies’ speech.”

The group does not disclose its donors and did not respond to a request for comment. In previous years, the Corn Refiners Association, a lobby group that represents the high fructose corn syrup industry, has disclosed financial ties to the Washington Legal Foundation.

Drug companies, including Purdue Pharma, the makers of OxyContin, have also used the Washington Legal Foundation to challenge government rules and establish legal precedent to reduce the ability for prosecutors to seek criminal charges for drug company executives.

Conagra, Ocean Spray, the American Frozen Food Institute, and the American Bakers Association similarly hinted at a legal threat to the FDA healthy food labeling rule. All four organizations cited constitutional issues with the proposed labeling requirements in letters to the agency.

The joint filing from cereal manufacturers not only scorns the labeling rules, but also argues that sugary cereals pose no health risks and are, in fact, beneficial to society and childhood health.

The companies stated that they view the “extremely strict” guidelines as “alarming” because “cereal is one of the most affordable, nutrient dense breakfast choices a person — adult or child — can make … with a wide range of options to suit different cultures, preferences, and taste.” Cereals, the companies claimed, are already recognized for “nutritional benefits,” given their inclusion in a range of federal programs that “serve the nation’s vulnerable populations,” such as the Special Supplemental Nutrition Program for Women, Infants, and Children and the National School Lunch Program.

The companies charged that cereal “delivers on nutrition when eaten alone, but when consumed as part of breakfast, it elevates the nutrition further,” with cereal eaters exhibiting an “overall higher diet quality.” As evidence, the filing cites a 2019 study conducted by in-house researchers employed by General Mills, the maker of Lucky Charms, Cinnamon Toast Crunch, and Trix, among other brands.

Lucky Charms and Trix contain approximately 12 grams of sugar per serving, nearly five times the limit proposed by the FDA’s healthy labeling guidelines. What’s more, researchers have found that children typically eat more than twice the recommended serving size of cereal for breakfast, meaning that a typical sugary breakfast cereal portion contains 24 grams of sugar, close to the sugar content of a Snickers chocolate bar.

The food manufacturers also stressed that the FDA should consider that cereals represent an affordable and accessible option for “families who are experiencing food insecurity.” As evidence, the companies reference another General Mills-funded study to show that low-income cereal consumers had higher daily calcium intake and across all income levels, cereal eaters were associated with better diet quality.

The agency, they wrote, should recognize the beneficial role of sugar. “Sugar plays a role in foods beyond palatability; it controls water activity, creates texture, adds bulk, and also contributes to flavor complexity,” the filing states.

General Mills, Kellogg’s, and the Consumer Brands Association, a trade group for cereal manufacturers, similarly filed a protest against the FDA proposal, citing its impact on sugary cereal brands. Cereal makers produced half a dozen separate filings, counting various trade groups and individual protest letters from manufacturers.

Independent researchers, however, have found that diets high in processed foods and sugar are linked to obesity, diabetes, high risks of stroke, obesity-related cancers, hypertension, and dental diseases.

Children’s eating habits of high-sugar cereals and snacks, multiple studies have shown, are the driving factor for high levels of childhood obesity. Children are also bombarded with advertising for ultrasweet cereals, a dynamic that has been found to increase the subsequent intake of advertised cereals.

The FDA’s move to discourage sugary diets to children and curtail advertising of such foods to children echoes the Obama administration, when a variety of voluntary guidelines were proposed in 2011.

At the time, lobbyists for the food industry mobilized a broad counterassault in Congress, with allied lawmakers inserting provisions into the authorizing legislation to delay the voluntary guidelines. During this fight, the food industries hired SKDK, a consulting firm co-founded by Anita Dunn, who went on to help manage President Joe Biden’s recent campaign and currently serves as his close adviser in the White House.

The new proposed rules also expand the categories of foods that may be labeled as healthy, including nuts, higher-fat fish such as salmon, avocados, and water.

The open comment period for the FDA guidelines closed on February 16. The agency, which has offered companies three years to comply with the rule once it is finalized, is still reviewing the feedback.