Let them eat cake!

Professor Susan Jebb, the Food Standards Agency chairwoman, made a speech published in the Times as part of its Health Commission inquiry setting out her views on a range of topics related to the prevention and treatment of obesity and stating Cake in the office should be viewed like passive smoking, Cake in the office should be viewed like passive smoking, obesity expert warns | News | The Times .

Bringing cake into the office is as harmful as passive smoking, Professor Jebb has suggested, and workers should think twice before bringing unhealthy treats into the workplace which might tempt colleagues.

"With smoking, after a very long time, we have got to a place where we understand that individuals have to make some effort but that we can make their efforts more successful by having a supportive environment. But we still don’t feel like that about food.”

“If nobody brought in cakes into the office, I would not eat cakes in the day, but because people do bring cakes in, I eat them. Now, OK, I have made a choice, but people were making a choice to go into a smoky pub,” she told The Times.

The U.K. food regulatory agency and Professor Jebb said she was speaking in a personal capacity and not for the organization. Professor Jebb is participating in The Times Health Commission in a personal capacity and these comments reflect on her research in her role as Professor of Diet and Population Health at the University of Oxford.

However, although Professor Jebb was discussing support provided in healthy living, the association between foods high in fat,salt and sugar (HFSS) and smoking has been subject to lawsuits, particularly in the US. The linking of similarities between tobacco and obesity/HFSS foods is likely to encourage further restriction, legislation and potential product liability warnings.

Pelmans v McDonalds, which was successfully struck out in 2003 was the most widely reported obesity lawsuit in the US.

The obesity claims in the US have many parallels with the US tobacco litigation. Many of the issues that arose in tobacco (allegations of fraudulent deception and corporate cover-up, issues as to knowledge / defence of volenti non fit injuria, issues of addiction etc) were also relevant in the US in relation to obesity claims. Although there has been tobacco litigation in the UK, it has not followed the same course as that in America, mainly due to limitation points, adjudication by a judge as opposed to a jury and so the examination of issues such as a precise causal connection and practical issues such as the “loser pays” indemnity costs rule.

The greatest risk in the food sector lies in what can and cannot be said about the food and if a claim or statement is made that is false or misleading.  Successful litigation has generally applied to this area more than any other ie in 2002 McDonald’s issued an apology and paid $10 million (£7mn) to vegetarian and religious groups in an out of court settlement in respect of their claim that fries were vegetarian when in the US the fries had been prepared firstly with beef tallow.  Other US litigation concerning various claims in respect of the use of trans-fats in 2015 designed mainly to raise consumer awareness against the products which are the subject of the litigation. 

In the UK there is the potential for criminal prosecution from trading standards and brand reputation damage via complaints upheld and rulings published by the ASA.

Manufacturers do have a general obligation to warn consumers in respect of product risks. However, in the absence of specific regulatory objections, this obligation exists only where the manufacturer can reasonably anticipate that health hazards will arise during the normal expected use of a product.

Legislation and in particular, Food Information Regulation 1169/2011, does not require mandatory warnings such "High in" sugars, salt or fats and has not defined any criteria for its use. Rather, in order to inform consumers on nutritional values, legislation on food information to consumers provides for mandatory nutrition declaration on pre-packed foods. In addition, in order to help consumers identifying the essential nutrition information when purchasing foods, legislation does allow for the repetition on front-of-pack of the most important elements of the nutrition declaration: the energy value alone or the energy value together with the amounts of fat, saturates, sugars and the sodium content expressed as salt Legislation also acknowledges that additional forms of expression and presentation of the nutrition declaration may help consumers to better understand the nutrition declaration and allows for different forms to be developed by Member States. 

This is where the UK’s front of pack voluntary labelling has come in.  Front-of-pack labelling in the UK is voluntary but most of the major supermarkets and many food manufacturers provide this and use the government's recommended format - red, amber, green colour-coding and percentage reference intakes (RIs) - or as it may be better recognised - traffic light labelling.  This is therefore already as close to a ‘warning’ label being applied to food that can be found.

Where food is safe, as part of a well balanced diet no foodstuff should be demonised.  There is a reason the EU has not been able to agree a set criteria itself for HFSS foods.  Individuals will have different nutritional needs and some may need more calories than others.  Energy intake, our daily bread or even cake, is essential for living, unlike smoking or passive smoking. Professor Jebb would have been discussing the need to be supportive of a healthier lifestyle. However, the reference to passive smoking does imply the need for legislative restrictions to seek to underpin this.

The UK Government’s ‘sugar tax’ for soft drinks and ‘obesity strategy’ providing calorie information for menus out of home, restricting the location of certain HFSS foods in retailers and online, and, restrictions banning multibuy deals on certain HFSS foods and drinks and the restriction by volume price will come into force on 1 October 2023. Restrictions on certain HFSS foods from being advertised on TV before 9pm and paid-for adverts online are now due to come into force in October 2025. This raft of restrictions of certain HFSS foods shows a certain regulatory ‘creep’.

Clearly, Professor’s speech was designed to be headline grabbing; however it would be advisable that positive promotions and assistance for healthy eating is provided rather than continued red tape and approbation for a certain sector of the food industry.

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