"Candy is happiness . . . It is joy itself . . ."
-James E. Mack, National Confectioners Assn.
"Do you want kids to eat candy bar and Coke for lunch or do you want them to eat fruits, vegetables and milk? The basic argument is really that ."
-Lynn Parker, Food Research and Action Center
The federal government for years has had the power to bar the sale of foods it finds to be contaminated or falsely labeled. Now it is venturing uncertainly one step farther:
In a limited but systematic way, it is contemplating controlling the sale of certain foods for dietary or nutritional reasons.
The homely vehicle for this is a regulation on which the Department of Agriculture is now at work, to control the sale of competitive foods in school lunchrooms. Competitive foods are those that come from vending machines or so-called a la carte lunch lines and compete with the "Type A" lunches the department subsidizes.
Little money is directly at stake in this regulation. Sales of competitive foods in schools are not that large.
But the regulation-which Congress authorized the department to include in a bill it passed in 1977-has taken on great symbolic importance, and somd food companies fear it could have serious precedent-setting value as well.
And so, in one of the rituals of regulatory politics, the companies have turned to this city's famous law firms.
Hershey Food Corp., fearing with cause that candy is one product likely to be affected, has turned to Covington & Burling, in the person of Peter Barton Hutt, former chief counsel of the Food and Drug Administration.
M & M Mars has turned to Baker & McKenzie and John A. Knebel, Earl Butz's successor as secretary of agriculture in the final weeks of the Ford administration.
Their basic argument-smoothly made in copious submissions they have made to the department in response to its call for com ments-is that no scientific basic exists for singling out candy as an offending product. Candy in recent years has come under attack as too sugary, and over the last 15 or 20 years it has lost ground in the expanding between meals food market. Yet the companies and their lawyers say candies contain as many nutrients as many other foods whose sale probably would not be controlled in school lunchrooms.
"On a 100-calorie basis, Mr. Goodbar is superior to Del Monte canned pears in protein, thiamine, niacin and calcium content," Covington & Burling's Hutt wrote at one point, and elsewhere pointed out that most of the basic ingredients in Hershey products are wholesome beyond dispute.
"We purchase in excess of one million pounds of milk per day and thousands of tons of peanuts and almonds per year," he reminded the department. "In fact, Hershey is one of the five largest purchasers of peanuts in the United States and the single purchaser of almonds."
From Knebel came similr flourishes. "It is not reasonable to condemn milk for having no niacin or iron; the pear for having no significant amount of any nutrient; white bread for having no vitamins A and C; or M & M's Peanut Chocolate Candies for being low in vitamins A and C," he said.
Then Knebel went after raisins and the apple. Raisins, he said, though "commonly featured in the school lunch," have fewer nutrients and "considerably more" carbohydrates and sugars than many M & M/Mars products, while "the apple, a well established sentimental favorite . . . has recently been found to be more cariogenic (cause more cavities) than the Milky Way bar."
The candy industry has not been alone in its apprehension. The soft drink industry, the vending machine industry and assorted others also have called on the department not to shut them out.
Congress briefly gave the secretary of agriculture authority to regulate sales of competitive foods in school lunchrooms once before, in 1970. The authority was withdrawn in 1972. One issue then was that many schools sell competitive foods as extracurricular fund-raising devices, to buy band uniforms, for example.
The secretary's authority was restored in a school lunch bill in 1977, but is limited. The only penalty for failure to comply would be to cut off school lunch funds. In that sense the government would not so much be regulating as setting conditions for a subsidy, something it does all the time.
The bill also contained no guidance as to how the secretary's authority should be used.
The department has been relying instead on legislative history, and particularly on an often-cited remark made on the Senate floor by George McGovern (D-S. D.), chairman of the Senate nutrition subcommittee."The secretary would have the authority . . . to regulate the sale of foods of limited nutritional value," McGovern said. "The general category of foods that have limited nutritional value includes gum, candy, pop and foods that, even though they may be fortified with vitamins, are too high in sugar and caloric content to be wholesome."
Three important shifts are summed up in this legislative history.
One is semi-constitutional. Less and less of the legislating in Washington is being done in the legislative branch of the government, more and more in the executive agencies. Congress has fallen into the habit, on issue after difficult issue, of delegating the detailed decisions to the executive agencies and those detailed decisions, made in regulations, often are the ones that matter the most.
The second shift is dietary. Man's main nutritional problem for most of history has been too little to eat. In recent years in America it has been too much. The old age goal remains-to increase consumption fo nutrients. But now there is a new one as well-to restrain consumption of such things as sugar, fat and salt And restraint in almost any field is hard for government to promote.
The third shift has to do with the Department of Agriculture, which now is trying harder than perhaps ever before to represent consumers of food as well as producers. One symbol of this shift is Carol Tucker Foreman, former executive director of the Consumer Federation of America and now assistant secretary for food ad consumer services, under whose direction the competitive foods regulation is being prepared. Her tenure has been controversial, and "the companies viewed this as a way to put down Carol," one congressional expert says of their opposition.
Under Foreman's direction in Secretary Bob Bergland's name, the department did publish a proposed competitive foods regulation last April. It was withdrawn in December.
The proposal would have barred the sale of candy, soft drinks, chewing gum and frozen desserts to children on school premises until after the last lunch period each school day.
Almost everyone involved concedes that it would have been taken to court and struck down as arbitrary. There was no clear rationale for the choice of those four categories, and only those four. As one Agriculture Department aide now says, a little ruefully, "There is a great body of belief as to what constitutes nutritional food. But there is little one can demonstrate.
The department is now trying to come up with a nutritional rationale on which to act. That is what caused the Hershey and M & M/Mars lawyers to dwell at such length onthe nutrients in their companies' products.
It is at least conceivable that Congress, meanwhile, could try to rescind the secretary's regulatory authority a second time.
It almost did so last year in a similar case involving the Federal Trade Commission. The FTC is investigating ads on television aimed at children, particularly cereal ads. One issue is whether those ads promote non-nutritious cereals. Congress considered adding a rider to an appropriations bill, forbidding the spending of any money to continue the investigation.
And it passed such a rider in still another case, to keep Foreman and the Agriculture Department from banning use in the school breakfast program of the fortified "formulated grain-fruit product" or so-called super doughnut.
But for now the competitive foods decision still lies with the department.