Monday, May 8, 2006

Last week’s announcement that most soda manufacturers will stop selling their sugary products in U.S. schools did not mention that avoiding lawsuits was part of the motivation for the self-imposed ban. Some of those who threatened legal action to stop the soda sales are patting themselves on the back over the agreement, while lamenting that the deal did not go far enough, and now plan to press for more restrictions.

“Though there is room for improvement — sugary “sports” drinks still will be sold in schools, for instance — this voluntary agreement is certainly good enough that CSPI will drop its planned lawsuit against Coca-Cola, PepsiCo, Cadbury-Schweppes and their bottlers,” said Michael F. Jacobson, the executive director of the Center for Science in the Public Interest . “I hope this settlement contributes to the momentum that is building in Congress for legislation that would require USDA to update its standards for foods sold outside of school meals. That would enable USDA to eliminate the sale of candy, cookies, French fries, potato chips, and other snack foods, as well as sports drinks, that are standard fare in school vending machines and stores.”

In the wake of the announcement of the agreement by the three largest soft drink companies, their bottlers and the public health advocacy group, the Alliance for a Healthier Generation, Jacobson thanked his team of litigators for “negotiating effectively with the soft-drink industry over the past six months, and for demonstrating that the judicial system can play an important role in spurring public health advances.”

Richard Daynard, a law professor and president of the Public Health Advocacy Institute, which threatened the soft-drink industry with lawsuits, said in an institute press release, “The industry agreement with the Clinton Foundation and American Heart Association comes after sustained pressure from potential litigation and negotiations with public health groups and their lawyers. It is a credit to the role of litigation and the legal system as a component of effective public health strategy.”

“This agreement demonstrates the potential of public health litigation to help control the obesity epidemic,” he said.

In an email exchange with the James Logan Courier, Margo Wootan, director of Nutrition Policy for the Center for Science in the Public interest, said, “Last week’s announcement that soft drink companies will pull all sugary sodas from schools is great step toward improving school foods. This agreement is the culmination of the tremendous national momentum on improving school foods — from the local policies (in LA, NYC, Chicago, Philadelphia, DC, etc.), state bills (in 2005, 200 bills were introduced in 40 states to get soda and junk foods out of schools), the strong bipartisan bill pending in the U.S. Congress, and threats of litigation against soda companies.”

“While today’s agreement is a huge step forward, it is by no means the last step” wrote Wootan, ” We still have a lot of work to do to improve school foods.”

The agreement, announced Wednesday morning by the William J. Clinton Foundation, means that the nation’s biggest beverage distributors, and the American Beverage Association, will pull their soda products from vending machines and cafeterias in schools serving about 35 million students, according to the Alliance for a Healthier Generation, a joint initiative between the Clinton Foundation and the American Heart Association.

Under the agreement, high schools will still be able to purchase drinks such as diet and unsweetened teas, diet sodas, sports drinks, flavored water, seltzer and low-calorie sports drinks for resale to students.

The companies plan to stop soda sales at 75 percent of the nation’s public schools by the 2008-2009 school year, and at all schools in the following school year. The speed of the changes will depend in part on school districts’ willingness to change their contracts with the beverage distributors.

Some food activists criticized the deal for not going far enough and undermining efforts to go further.

Michele Simon, the director of the Center for Informed Food Choices, based in Oakland, Ca., called the deal “bogus” and a “PR stunt” by “Big Cola” in an effort to “sugar coat it’s image.”

“This announcement could potentially undermine ongoing grassroots efforts, state legislation, and other enforceable policies,” wrote Simon in an article at,” For example, in Massachusetts where a stronger bill is pending, a local advocate is worried about the adverse impact, since legislators could easily think that Clinton has taken care of the problem and ignore the bill. What was already an uphill battle—getting schools and legislatures to take this problem seriously—was just made worse, not better, by this bogus agreement.

“Even from a health standpoint, the deal is hardly impressive. Diet soda full of artificial sweeteners, sports drinks high in sugar, and other empty-calorie beverages with zero nutritional value are still allowed in high schools,” Simon wrote, “Also, parents concerned about soda advertising in schools will not be pleased with the agreement. Not a word is mentioned about the ubiquitous marketing children are subjected to daily in the form of branded score boards, school supplies, sports bags, and cups (just to name a few), which is required by exclusive Coke and Pepsi contracts. “

She’s not the only one criticizing the deal.“ While the initial details are promising, PHAI is concerned about some aspects of the agreement as it is being reported,” Daynard said in the press release. “The continual sale of “sports drinks” is a cause for concern. While they have a role for marathon runners and others engaged in sustained strenuous sports, for most students “sports drinks” are just another form of sugar water. Furthermore, the change in beverages offered must be carefully monitored and cannot depend entirely on the schools’ willingness and ability to alter existing contracts. Soda companies have spent decades pushing these unhealthy drinks on children and should bear the responsibility for their removal. PHAI is also concerned about the enforcement of this agreement and its silence on industry marketing activities in the school system,” he said.

“Importantly, the agreement doesn’t address the sale of chips, candy, snack cakes, ice cream, or any of the other high-fat, high-calorie, high-salt foods that are sold widely in schools,” said Wootan of the Center for Science in the Public Interest, “This is a voluntary agreement and is not enforceable, we need Senator Harkin’s school foods bill to lock in the beverage standards and give them the force of law.”

Even the diet drinks, which will still be offered, need to go, said Ross Getman, an attorney in Syracuse, NY. Getman has advocated that soda should not be sold in public schools and that long-term “pouring rights” agreements, which give a company exclusive access to sell their brands at a school, are illegal for a variety of reasons.

Getman, who contends that some diet sodas are contaminated with benzene, a cancer-causing chemical, said the soda “industry gets an “F” for incomplete” for “the industry’s failure to pull all soda from school and to recall products.”

Schools account for about $700 million in U.S. soft-drink sales, less than 1 percent total revenue for Coca-Cola, PepsiCo and Cadbury, the nation’s largest soda companies.

Ten of the largest U.S. school districts have already removed soft drinks from vending machines, according to Getman. States including California, Maine and Connecticut have also banned sugary sodas in schools.