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Advisory Committee’s Violations Of Federal Law Threaten Credibility Of 2015 Dietary Guidelines

Forbes-Magazine-Logo-FontBy: Glenn G. Lammi, Forbes

In introducing an October 7, 2015 oversight hearing on the forthcoming 2015 Dietary Guidelines for Americans (DGA), House Agriculture Committee Chairman Michael Conaway stated, “It is essential that the guidance that comes out of this process can be trusted by the American people.” Chairman Conaway framed that remark in the context of the scientific evidence the 2015 Dietary Guidelines Advisory Committee (DGAC) relied upon in its Scientific Report. Lawmakers should question the quality of the report’s science, but their probe of the DGAC and its work shouldn’t stop there. Another, perhaps greater, threat to the Dietary Guidelines’ credibility is the significant breaches of federal law that occurred in the creation of the DGAC. Violations of the Federal Advisory Committee Act (FACA) infect the entire Scientific Report and call into question its recommendations and any federal regulatory proposals that rely on the report or the resulting DGA.

Congress adopted FACA in 1972 to ensure that “standards and uniform procedures” would “govern the establishment, operation, administration, and duration of advisory committees.” Section 5 of FACA requires that all federal advisory committees be “fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee.” In adopting the “fairly balanced” requirement, Congress emphasized the need “to ensure that persons or groups directly affected by the work of a particular advisory committee would have some representation on the committee.”* Otherwise, committees could fall victim to the type of “groupthink” that corrodes open discussion and produces flawed, thinly reasoned recommendations.

The Secretary of Agriculture and the Secretary of Health and Human Services failed to comply with these requirements in forming the DGAC. The committee was homogeneously academic. WLF is not alone in raising this lack of diversity. One member of the 2010 DGAC noted, “The flavor [of the committee] was quite evident based on the consultants the DGAC brought on board . . . there was not a balance of presentation. We did not have an adequate amount of agriculture input, nobody on the committee was a food scientist or had been trained in food science, nobody had a background in food law.” Another 2010 DGAC member was equally critical, explaining, “When policy recommendations are developed by committees, such as the DGAC, those committees should be comprised of a balanced and well-rounded set of perspectives and expertise.”

The 2015 DGAC was also sorely lacking in fair balance of “the points of view represented.” As a 2005 DGAC member told reporters after the release of the 2015 Scientific Report, “They [USDA and HHS] selected members who would think more about policy . . . because few of them were card-carrying nutrition or food scientists and they must have had a particular idea in mind . . . otherwise why would they have chosen them?” Prior to their appointment, numerous DGAC members publicly embraced and advanced government activism as the preferred cure to obesity in America. WLF’s comments on the DGAC Scientific Report detail some of these perspectives.

Take, for instance, the participation of member Dr. Frank Hu in a 2013 Center for Science in the Public Interest (CSPI) petition to the Food and Drug Administration (FDA) demanding that the agency review the generally recognized as safe (GRAS) status of added sugars in soda and other beverages, and feature an “added sugars” line on the Nutrition Facts panel. The DGAC demonized “added sugars” throughout its report and advocated for the added-sugars labeling. DGAC Committee Vice-Chair, Professor Alice Lichtenstein, spoke regretfully about the New York City’s drink portion-size ban being “blocked by the courts” in an illuminating speech at Boston University’s College of Health on December 4, 2013. She also upbraided the food industry for “giving consumers what they demanded,” such as products with large amounts of “added sugars.” During her presentation at a Tufts University academic conference, “Obesity in America: Turning it Around,” DGAC member Miriam Nelson encouraged attendees to intensify their focus on the role government health policy could play, remarking, “We have to be looking at this [obesity epidemic] from a perspective way beyond the realm of personal responsibility.” Each of these committee members served on the DGAC’s Added Sugars Working Group.

The DGAC members’ active defense of their self-described “bold action” even after the committee was formally disbanded is a further indication of their crusading preference for government solutions over consumer empowerment. In a letter to House Appropriations Committee members signed “the 2015 DGAC,” the members protested proposed riders to an appropriations bill that would impose certain criteria on issuance of the 2015 DGA, including that all recommendations be based on “strong” scientific evidence. Each member also signed a letter sponsored by CSPI that called on the British Medical Journal to retract a story that was critical of the DGAC Scientific Report.

A thorough examination of HHS’s and USDA’s establishment of the 2015 DGAC will help lift the veil that the federal government has placed around the Dietary Guidelines, and allow the public to fully evaluate the document’s nutrition and policy recommendations. FDA’s citing of the DGAC report for including an “Added Sugars” line item on the redesigned Nutrition Facts panel, as well as a percent Daily Value for added sugars, also necessitates a review of FACA compliance.  As WLF explained in its comments on that July 2015 FDA proposal, a successful administrative law challenge could be lodged against a final labeling rule for its reliance on a government report rendered invalid by FACA violations.

Recent press accounts indicate that public-health activists are urging HHS and USDA to release the 2015 Dietary Guidelines before December 11, the day Congress would likely have to act on the appropriations bill that contains the riders discussed above. Actions can, and should, be taken prior to that day to initiate an examination of those agencies’ compliance with the mandates of the Federal Advisory Committee Act. The public and respect for the Rule of Law deserve no less.

*Nat’l Anti-Hunger Coalition v. Exec. Comm. of President’s Private Sector Survey on Cost Control, 711 F.2d 1071, 1074 n. 2 (D.C. Cir. 1983).