Commercial food products for toddlers aren’t specifically regulated beyond the FDA’s generic regulation that governs all foods. Libertarians view regulation as an inefficient interference with unfettered markets and individual freedom. They criticize the regulation of alcohol, tobacco, and food as exemplifying a pernicious “nanny state”: the government usurping individual freedom and choice, and in the case of child protection regulations, also usurping parents’ traditional roles and undermining family prerogative. Proponents of regulation see it as sound and necessary public policy that protects us from abuses and potential harm. Legal and regulatory interventions are compelling when those protected are uniquely vulnerable, and the stakes are very high. Specific regulatory requirements focused on toddler food products would be justified by toddlers’ exceptionally high vulnerability, the critical importance of early childhood nutrition, and the poor nutritional quality of most commercial toddler food products currently available in supermarkets.
Introduction
Few political and economic debates are as time-honored as those around government regulation. Whether regarding the environment, labor relations, financial transactions, or consumer protection, the underlying question is familiar to us all. Should the government stay out of our lives?1 Or should it intervene to protect the public?2
Public health regulation of alcohol, tobacco, and food has various forms. Excise taxes on tobacco and alcohol reduce consumption by making the products more expensive.3 Advertising restrictions limit when and how unhealthy products can be marketed.4 Labeling regulations specify and limit how companies mark packaged product ingredients, nutritional profiles, and health benefit claims.5 Some municipalities attempt to restrict fast food restaurant portion sizes on items like sugary soft drinks to reduce consumption of empty calories and excess sugar.6
Such regulatory proposals trigger a “nanny state” critique of government interference in, and subversion of, free markets. The term nanny state refers to “a government that interferes with the public’s personal choice and, as a result, is overprotective.”7 The nanny state critique supports food industry lobbying efforts against proposed regulations.8 Food industry lobbying is a well-funded, powerful weapon against regulatory initiatives that threaten to reduce profits.9
This Article addresses an important health concern: the quality of nutrition for toddlers.10 It puts forth the case for embracing the regulatory nanny state when it comes to food products developed, manufactured, and marketed for small children.11 Given toddlers’ vulnerability and relative powerlessness, this case should be compelling to all—not only those who ordinarily embrace public health regulation but also those who ordinarily fight public health regulation as an infringement of individual and personal freedoms.
I. The Younger the Age of the Protected, the More Receptive Society is to Legal and Regulatory Protections
Law and regulation routinely provide enhanced protections to children. The younger the group protected, the more vulnerable they are and the less responsible agency and freedom they can exercise. Therefore, the state affords special protections to minors in many areas of the law. For example, minors generally have the right to void contracts they enter.12 Additionally, for criminal infractions, minors can be tried in special juvenile courts and sentenced with leniency.13 Furthermore, under varying state specifications, minors below a certain age are legally unable to consent to sexual relations with adults.14 These are just a few examples of the broadly accepted state protections given to minors.
There is even uncontroversial precedent for special protections for minors relating to food and nutrition. The United States Food and Drug Administration (“FDA”) provides meaningful, serious nutrition protection to infants prior to weaning.15 It enumerates thirty nutrients that must be contained in commercially sold infant formulas.16 It also requires accurate labeling regarding appropriate preparation and use of infant formulas.17 These FDA regulations apply to both infant formula manufactured in the United States and imported formula.18
Has there been any nanny state concern that these regulations are a paternalistic incursion into the free choices of parents? An Internet search as of this writing finds no apprehension about this regulatory role of the FDA. When it comes to newborn babies, even those most disturbed by regulatory overreach seem untroubled by these very basic protections for our most vulnerable.
This makes sense if we consider the nanny state critique along an age continuum, beginning at birth and ending at the age of legal majority. Arguments for regulatory public health interventions are most compelling at birth when those being protected cannot protect themselves. On the sliding scale between birth and age 18, arguments for regulatory protection become increasingly susceptible to nanny state objections as the infant ages.
In other words, nanny state protections of minors are most convincing when applied to infants and least convincing when applied to adolescents about to become adults. After infants, toddlers are the second most compelling group to justify protective law and regulation—even to those who generally have nanny state concerns.
II. The Serious FDA Oversight of Infant Formula Does Not Extend to Commercial Toddler Food Products, and United States Department of Agriculture Cannot be Expected to Fill This Void
While regulation protects infants by establishing thirty nutritional requirements for infant formula and labeling standards,19 FDA oversight vanishes once a toddler progresses to commercial baby food products.20 This leaves a regulatory vacuum over toddler food products, as the other important federal government entity charged with oversight of nutrition, the United States Department of Agriculture (“USDA”), provides only basic recommendations to parents of toddlers and no regulatory oversight of commercial baby food manufacturers.21
The anemic efforts of the USDA shouldn’t surprise us, given that the Department has two missions that cannot ethically co-exist: the creation of public guidelines on nutrition and the promotion of commercial agricultural and food production.22 Critics have long observed that these two missions are in serious conflict, especially given the well-heeled lobbying efforts of the food industry.23
The public health mission of the USDA has been captured and gutted by commercial interests.24 Consider the most recent Dietary Guidelines issued by the Department in tandem with the United States Department of Health and Human Services (“HHS”). The USDA and HHS update these Dietary Guidelines every five years, theoretically with substantial reliance on expert advice provided to it by a Dietary Guidelines Advisory Committee (“DGAC”) appointed by the two agencies.25
In its 2020 Dietary Guidelines, the USDA rejected two important changes suggested by this Committee.26 First, the Committee recommended reducing the maximum suggested added sugar threshold from 10% of total daily calories to 6%.27 Second, the Committee recommended reducing the upper daily limit of endorsed alcohol consumption for men, from two drinks per day to one.28 Despite these Committee recommendations supported by the most recent scientific evidence, the USDA rejected both modifications when they issued the final official 2020 Dietary Guidelines.29
Why would the Department override its own experts’ recommendation to reduce suggested sugar and alcohol consumption? We can speculate with an educated guess. The Department’s mission to support agriculture—including agricultural products that go into refined sugar, corn syrup, beer, wine, and hard liquor—creates an enormous conflict of interest.30 Logically, agricultural and commercial food interests will fight any changes that threaten to reduce demand for their products.
Moreover, this situation won’t get any better when the 2025 Guidelines are announced. A study from U.S. Right to Know31 concludes that nine of the twenty DGAC members—who are now preparing those recommendations—have a conflict of interest, and another four members have a possible conflict of interest.32 So much conflict of interest within the 2025 DGAC suggests its recommendations will be subject to substantial industry influence, undermining the Committee’s charge to help improve public health rather than to support corporate interests.33
Thus, the USDA Dietary Guidelines can be corrupted on two levels: Advisory Committee members have industry conflicts of interest, and the USDA itself is subject to conflicts of interest when it decides whether to accept any Advisory Committee recommendations that would make things like sugar and alcohol guidance more stringent. In the absence of Congressional reform of its fundamentally conflicting missions, we cannot rely on the USDA to protect anyone’s nutrition and health, including the nutrition and health of toddlers.
III. Influential Agencies like the CDC and the WHO Likewise Cannot Fill the Regulatory Void in Oversight of Commercial Toddler Food Products
Important and influential agencies like the United States Centers for Disease Control and Prevention (“CDC”) and the United Nations World Health Organization (“WHO”) likewise fail to provide meaningful protection for toddlers’ nutrition. Both the CDC and the WHO lack regulatory authority—the most they can provide is guidance on best practices.34
The CDC does provide useful, albeit generic, information on topics like breastfeeding, formula feeding, and appropriate food and drinks for ages 6 months to 24 months.35 But because the CDC information is merely guidance and lacks any enforcement teeth, it is unlikely to affect food manufacturers’ decisions about what they make and sell to the public and how they market it.36 And while the CDC web page offers helpful information for parents who take the time to seek it out, the impact and reach will likely be limited, particularly among the most vulnerable toddlers whose parents lack the online resources or the time to research the nutritional recommendations.37
Like the CDC, the WHO is a valuable organization that delivers important information and guidance on toddler nutrition.38 Its Regional Office for Europe created a groundbreaking “Nutrition and Promotion Profile Model” (“NPPM”) in 2022, which it describes as “supporting appropriate promotion of food products for infants and young children 6–36 months in the WHO European Region.”39
According to the WHO, the NPPM “sets out nutrient and promotional requirements across different product categories.”40 The nutritional standards address things like sugar, salt, and fat content.41 The promotional requirements address things like whether recommending the product for the toddler age range is appropriate and regulate the use of marketing “health halos,” such as “no added sugar,” to mask poor nutrition.42
These efforts are certainly helpful, but like the work of the CDC, the WHO is advisory—it doesn’t establish regulatory requirements that actually govern food manufacturers.43 However, as we see in the following Section, researchers have used the Nutrition and Promotion Profile Model to evaluate the current quality of toddler nutrition—and the conclusions are disturbing.44
IV. Without FDA Regulation, Guidance from the USDA, CDC, and WHO Fails to Protect Toddlers
Compelling research from Coyle et al. in 2024 demonstrates that most commercial food products fail to meet the WHO’s NPPM basic Guidance standards.45 The investigators collected 651 commercial food products for babies between the ages of six months and three years from the top ten grocery store chains.46 They found that 60% of these food products did not meet the NPPM’s nutritional requirements.47 They also assessed the 651 food products against the NPPM’s labeling standards, concluding that “[a]lmost 100% of products had at least 1 claim on-pack that was prohibited under the NPPM, with some products displaying up to 11 prohibited claims.48 Snack-size packages had the lowest compliance with nutrient requirements.”49
The disappearance of baby food regulation after weaning would be fine if we could rely on manufacturers to act responsibly and not opportunistically.50 If they thoughtfully, carefully, and conscientiously developed nutritious products that meet the basic NPPM Guidelines, voluntary responsibility would protect the public interest, and regulatory accountability would be unnecessary.51
Unfortunately, the findings of Coyle et al. suggest that in the absence of regulation, most of the supermarket food products consumed by toddlers don’t meet basic WHO nutritional standards.52 Making matters worse, even vigilant parents aware of this problem will find it difficult to choose only the most nutritious commercial food products, given the virtually ubiquitous labeling deficiencies identified by the study’s authors.53
Those opposing regulation may argue that parents in a free market, unhampered by nanny state regulation, deserve the freedom to make child-rearing decisions independent of regulatory interference.54 Under this reasoning, parents have the sole responsibility for protecting their children.55 They should research and understand the present realities identified by Coyle et al. regarding commercial foods and select commercial food products very carefully or else choose to prepare fresh foods for their toddlers.
This argument will appeal to hard-core libertarians, but it doesn’t reflect the realities that parents confront.56 Even with the best intentions to study nutrition and prepare fresh meals, they face the overpacked schedules of modern parental life.57 It’s no wonder so many of us consume a high percentage of commercially manufactured food products.58
Moreover, as Coyle et al. tell us, a parent’s ability to investigate the nutritional value of commercial baby foods will be thwarted by the ubiquity of NPPM labeling violations.59 Thus, a parents’ ability to make healthy choices will vary widely, depending on their level of nutritional knowledge and literacy. No toddler’s lifetime health should be diminished by these differences in available parental time and parental nutritional knowledge.
V. Public Health Regulation is Justified by the Vulnerability of Very Young People and the Lasting Harms They Face from Poor Early Nutrition
Infants and toddlers—babies from birth through age three—have virtually no input, control, or agency over the foods they consume. This group is supremely vulnerable. Therefore, the greater the impact of bad toddler diet over childhood and lifetime health outcomes, the stronger the argument for regulation. But is poor nutrition really so harmful to toddlers and their future well-being?
Obviously, poor nutrition from birth to age three will harm the infant during those three years.60 Unfortunately, and perhaps less intuitively obvious, the damage from poor toddler nutrition lasts well beyond these years when the child has no personal agency and choice. In fact, bad diet during these formative years can harm a toddler for life.61 This is true for several reasons.
First, these are the most crucial years for brain and nervous system development.62 Deficiencies in very early childhood that hinder good brain and neurological growth don’t vanish in adolescence or adulthood; they last a lifetime.63 The same is true for body development in general: poor nutrition at early ages can harm the body for the remainder of a child’s life.64 Diets high in sugar are an especially bad start, linked to lifelong problems related to dental decay, high blood pressure, lipid abnormalities, and nutritional inadequacy.65
Diets high in sugar also can contribute to early childhood overweight or obesity.66 This is another area where a poor early diet can create lifetime health challenges. Simmons et al. conducted a meta-analysis to understand the long-term impact of childhood and adolescent obesity on adult obesity.67 Assessing fifteen cohort studies with a total of 200,777 participants, the authors determined:
Obese children and adolescents were around five times more likely to be obese in adulthood than those who were not obese. Around 55% of obese children go on to be obese in adolescence, around 80% of obese adolescents will still be obese in adulthood and around 70% will be obese over age 30.68
Overweight and obesity can lead to a variety of disorders and diseases. The World Health Organization warns, “[c]arrying extra fat leads to serious health consequences such as cardiovascular disease (mainly heart disease and stroke), type 2 diabetes, musculoskeletal disorders like osteoarthritis, and some cancers (endometrial, breast and colon). These conditions cause premature death and substantial disability.”69
Dental health is another category in which high sugar intake can harm toddlers over a lifetime. Research confirms what the public commonly understands: sugar causes tooth decay.70 Maintaining a proper diet during the first few years of a child’s life plays an especially important role in that child’s dental health and overall well-being.71 The impact of poor dental health in early childhood lasts well beyond toddler years.72
Brain impairment, obesity risk, and poor dental health are just a few examples of serious health problems that can develop before age 3, when the child has no means of self-protection, causing harm that can last a lifetime.73 Given these high stakes and society’s broad acceptance of a responsibility to provide legal and regulatory protection to small children, few situations are more deserving of oft-maligned nanny state protections.
Recommendations and Conclusion
This Article has identified three conditions that support the most compelling case for regulation: a highly vulnerable population, a demonstrated inability of nonregulatory agencies to protect that population, and evidence of substantial harm to that population in the absence of regulation. These conditions currently exist regarding toddlers’ diet and nutrition. My goal is to persuade the readership generally, and especially those in power, that we need legal and regulatory reforms to improve toddler nutrition. Exactly what these reforms would be requires careful study. However, here are a few general thoughts and suggestions to start that process.
First, the U.S. Food and Drug Administration should establish nutritional requirements targeted specifically at commercial food products marketed for toddlers, comparable to their existing regulatory oversight of infant formula. Food products marketed for consumption by toddlers ages one through three have a serious effect on those toddlers, with lifetime health implications.74
It’s unlikely that the FDA would entirely replicate the World Health Organization’s NPPM requirements. The NPPM can, however, serve as a template or starting point for developing U.S. nutrition requirements for commercial toddler food products. Those tasked with this assignment should assess the scientific literature, compare their findings against the NPPM, and evaluate the latter’s strengths and shortcomings. Some important variables to address in FDA requirements might be fat content, salt content, and added sugar content, as well as micronutrients and macronutrients. Furthermore, recent scientific concerns75 about ultra-processed food products should be considered as well.
Second, the FDA should promulgate regulations requiring companies to meet labeling criteria similar to those established in the NPPM. Accurate labeling requirements are among the very least intrusive kinds of regulation and, therefore, also the least susceptible to nanny state criticism. This is true for two reasons. First, unlike portion size restrictions or product bans, labeling requirements don’t eliminate consumer choices in the market. Moreover, labeling requirements enhance the availability of accurate information, a fundamental underpinning of efficient markets76 so valued by libertarians.
Labeling requirements should mandate disclosure of all material information regarding both ingredients and nutrition. Moreover, labeling requirements should strictly monitor misleading health claims that, unfortunately, are rampant on food packaging, including products often targeted at children, such as breakfast cereals.77 Prohibiting false or misleading health claims around toddler foods should be considered a moral imperative that justifies regulatory support.
Third, the Department of Agriculture should be reformed in some way that overcomes the unacceptable conflict of interest in its mission. As noted earlier, the USDA is currently responsible for both establishing Dietary Guidelines for Americans and supporting the agricultural industry.78 This creates a serious conflict of interest, especially when powerful and well-heeled business interests—such as the sugar industry, the corn and derived corn syrup industry, and processed food manufacturers—fund aggressive lobbying efforts to promote their own commercial interests over public health.79
The conflict of interest in the USDA’s missions should disturb and concern us all. Industry lobbying efforts inevitably compromise the public health component of the Department’s mission.80 This situation is neither tenable nor tolerable, especially regarding infants and toddlers who have no ability to educate themselves about the true scientific evidence. If we care about public health and the health of our most vulnerable age group specifically, we must eliminate or separate the conflicting functions of the USDA.
Eliminating the conflict might take the form of breaking the USDA into two separate agencies. However, this final recommendation may sound audacious. The Department of Agriculture, a true governmental behemoth, has existed since 1862 and currently employs almost 100,000 people across its 29 agencies and offices.81
A less daunting proposal that might trigger less objection is to create an effective wall between the two conflicting mission functions. Under this latter scenario, the USDA wouldn’t be divided into two separate entities. Instead, its organizational design and structure would be reformed. The goal of the restructuring would be the complete separation of the hierarchical control over those two missions and all influence across the wall separating the two. Whether this could effectively be done would need to be evaluated.
In conclusion, while respect for the childrearing prerogative of free parents in a free society is important, it must be balanced with the interests of children who cannot yet protect themselves and their own personal well-being. The younger the consumer, the more we should err toward regulation and reform that provide basic protections. Toddlers certainly fall in this category. Given research revealing the lamentable nutrition profile of commercial foods for toddlers and the lifetime health risks of bad toddler nutrition,82 we must place the welfare of the children ahead of any rigid libertarian ideals.
* Cecil B. Day Chair, Professor of Law and Ethics and former Dean, Georgia Institute of Technology. B.A., Hofstra University; M.A., Dartmouth College; J.D., College of William and Mary; M.A., Ph.D., The Wharton School of the University of Pennsylvania.
1. See William J. Novak, Law and the Social Control of American Capitalism, 60 Emory L.J. 377, 379 (2010) (“The oldest, most powerful, and most tenacious interpretation goes by the name laissez-faire constitutionalism. So pervasive is this understanding of the relationship of law and economy that I need merely name it for most to conjure up a favorite example of a conservative, pro-business, Lochner-era jurisprudence frustrating progressive economic and social-welfare regulation.”).
2. See James M. Solomon, Book Review Essay: Law and Governance in the 21st Century Regulatory State, 86 Tex. L. Rev. 819, 821–22 (2008) (describing the traditional model of regulation using the examples of “the post-New Deal administrative state in the United States and the harmonization efforts of the European Union—[where] the state sets rules or standards through the legislature or agencies delegated power by the legislature, and private actors must comply with those rules”).
3. See Samantha K. Graff, State Taxation of Online Tobacco Sales: Circumventing the Archaic Bright Line Penned by Quill, 58 Fla. L. Rev. 375, 379–80 (2006) (“Sin taxes have a regulatory flair. They deter buyers from indulging in harmful products by making those products more expensive to obtain. Moreover, they serve to reimburse society for the costs it incurs due to consumption of the damaging product among the population.”).
4. For cases concerning advertising restrictions related to food, see, e.g., Grocery Mfrs. Ass’n v. Sorrell, 102 F. Supp. 3d 583 (D. Vt. 2015); Lever Bros. Co. v. Maurer, 712 F. Supp. 645 (S.D. Ohio 1989).
5. See, e.g., Chacanaca v. Quaker Oats Co., 752 F. Supp 2d 1111, 1116 (N.D. Cal. 2010) (“In 1990, Congress amended the FDCA through the passage of the Nutrition Labeling and Education Act (‘NLEA’). The NLEA aimed to ‘clarify and . . . strengthen the Food and Drug Administration’s legal authority to require nutrition labeling on foods, and to establish the circumstances under which claims may be made about nutrients in foods.’”) (quoting H.R. Rep. No. 101–538, at 7 (1990), reprinted in 1990 U.S.C.C.A.N. 3336, 3337).
6. See, e.g., Christina A. Roberto & Jennifer L. Pomeranz, Public Health and Legal Arguments in Favor of a Policy to Cap the Portion Sizes of Sugar-Sweetened Beverages, 105 Am. J. Pub. Health 2183, 2183 (2015) (“In 2012, the New York City Board of Health passed a regulation prohibiting the sale of sugar-sweetened beverages in containers above 16 ounces in the city’s food service establishments. The beverage industry and various retailers sued the city to prevent enforcement of the law, arguing that the board had overstepped its authority. In June 2014, the state’s highest court agreed and struck down the regulation.”).
7. Alannis Jáquez, The Nanny State: A Conservative Concern or a Misogynistic Myth?, Colum. Polit. Rev. (Apr. 11, 2022), https://www.cpreview.org/articles/2022/4/the-nanny-state-a-conservative-concern-or-a-misogynistic-myth [https://perma.cc/MVX8-MNY7].
8. See Christopher Doering, Where the Dollars Go: Lobbying a Big Business for Large Food and Beverage CPGs, Food Dive: Deep Dive (Dec. 6, 2021), https://www.fooddive.com/news/where-the-dollars-go-lobbying-a-big-business-for-large-food-and-beverage-c/607982/ [https://perma.cc/J6V5-KL96] (stating that thirty companies including Coca-Cola, PepsiCo, and AB InBev spend almost $40 million a year lobbying lawmakers and regulators).
9. See, e.g., Rob Waters, Soda and Fast Food Lobbyists Push State Preemption Laws to Prevent Local Regulation, Forbes (June 21, 2017), https://www.forbes.com/sites/robwaters/2017/06/21/soda-and-fast-food-lobbyists-push-state-preemption-laws-to-prevent-local-regulation/ [https://perma.cc/5SW2-5SCQ] (discussing soda industry lobbying efforts to avert taxation of sugary soft drinks).
10. For purposes here, infant will refer to birth to age 1, and toddler will refer to ages 1 through 3. While these aren’t terms usually defined by law, a good source of the general conception of this definition is disposable diaper manufacturer Pampers. See All About Newborn, Infant, Baby, and Toddler Age Ranges, Pampers (Mar. 2, 2023), https://www.pampers.com/en-us/baby/development/article/newborn-baby-toddler-age [https://perma.cc/6Y8D-KLC6].
11. The use of the term “food products” here rather than food is intentional, reflecting the fact that many commercial offerings are not entirely food but instead combine some food with chemicals, additives, preservatives, and other artificial ingredients. For a good discussion of the processing of food into harmful food products, see Carlos Augusto Monteiro et al., The UN Decade of Nutrition, the NOVA Food Classification and the Trouble with Ultra-Processing, 21 Publ. Health Nutr. 5 (2018).
12. Garay v. Overholtzer, 631 A.2d 429, 443 (Ct. App. Md. 1993) (“Generally, the law regards contractual obligations of minors as voidable, giving the minor child the choice whether to avoid the contract, or to perform it.”).
13. State laws have provisions for when minors are tried in criminal courts versus juvenile courts, and when minors are subject to adult penalties versus juvenile penalties. See Criminal Sentencing in Juvenile Court & Possible Legal Penalties, Justia, https://www.justia.com/criminal/offenses/other-crimes/juvenile-crimes/sentencing-in-juvenile-court/ (last visited Sept. 25, 2024) [https://perma.cc/VFB7-C4K8] (discussing leniency options in juvenile criminal court settings).
14. For discussion on age of consent laws and their importance in the protection of minors, see Statutory Rape: A Guide to State Laws and Reporting Requirements, U.S. Dept. of Health & Hum. Servs. (Dec. 14, 2004), https://aspe.hhs.gov/reports/statutory-rape-guide-state-laws-reporting-requirements-1 [https://perma.cc/XG66-7TNN].
15. See, e.g., Infant Formula, FDA, https://www.fda.gov/food/resources-you-food/infant-formula (last visited Sept. 25, 2024) [https://perma.cc/5ZTB-GG7R].
16. Id.
17. Id.
18. Id.
19. See supra note 16 and accompanying text.
20. The FDA doesn’t regulate toddler baby food with any specificity beyond the ordinary FDA adult food regulations, and their online guidance says a lot about infant formula but little about toddler baby foods. See, e.g., FDA, Food Safety for Infants and Toddlers, FDA, https://www.fda.gov/food/people-risk-foodborne-illness/food-safety-infants-toddlers (last visited Sept. 25, 2024) [https://perma.cc/8KDH-8BK2] (FDA web page which, despite its title, provides detailed information about infant formula but no appreciable information about post-weaning foods for toddlers).
21. See My Plate Kitchen, U.S. Dept. Agric., https://www.myplate.gov/life-stages/toddlers (last visited Sept. 25, 2024) [https://perma.cc/YXU8-AEHX] (containing a “healthy eating” section with very generic, basic information that provides little specific guidance and another generic section that recommends avoiding “added sugars” without any guidance regarding how difficult it is to find commercial products that don’t actually contain added sugars).
22. See About the U.S Department of Agriculture, U.S. Dept. Agric. https://www.usda.gov/our-agency/about-usda (last visited Sept. 25, 2024) [https://perma.cc/UPS9-PTBM] (stating “[w]e provide leadership on food, agriculture, natural resources, rural development, nutrition, and related issues based on public policy, the best available science, and effective management. We have a vision to provide economic opportunity through innovation, helping rural America to thrive; to promote agriculture production that better nourishes Americans while also helping feed others throughout the world; and to preserve our Nation’s natural resources through conservation, restored forests, improved watersheds, and healthy private working lands”).
23. See USDA’s ‘Dietary Guidelines Process Is Rife with Conflicts of Interest’ and Routinely Violates Law by Favoring Checkoff Programs Promoting Meat, Eggs, Dairy, Physicians Comm. for Responsible Med. (Jan. 16, 2024), https://www.pcrm.org/news/news-releases/usdas-dietary-guidelines-process-rife-conflicts-interest-and-routinely-violates [https://perma.cc/5BR7-WN5W] (“‘The USDA can’t be trusted to develop the Dietary Guidelines for Americans as long as the agency’s checkoff programs for meat, dairy, and eggs are influencing the Guidelines to recommend the very foods that are making Americans sick,’ says Mark Kennedy, Esq., senior vice president of legal affairs for the Physicians Committee for Responsible Medicine.”).
24. Regulatory capture is “a phenomenon that occurs when a regulatory agency that is created to act in the public interest, instead advances the commercial or political concerns of special interest groups that dominate an industry or sector the agency is charged with regulating. When regulatory capture occurs, the interests of firms or political groups are given priority or favor over the interests of the public.” Regulatory Capture, CFI Inst. Rsch. & Pol’y Ctr. Issue Brief (Oct. 29, 2019), https://rpc.cfainstitute.org/en/policy/positions/regulatory-capture [https://perma.cc/A5Y6-4MSQ].
25. Learn About the Process: Dietary Guidelines for Americans, 2025-2030 Development Process, Step 2: Appoint the Advisory Committee, Dietary Guidelines for Ams., https://www.dietaryguidelines.gov/learn-about-process#step-2-appoint-the-advisory-committee (last visited Sept. 25, 2024) [https://perma.cc/A3VQ-GFBP] (“HHS and USDA accepted nominations from the public to serve on the 2025 Dietary Guidelines Advisory Committee. The Departments received nominations from individuals and organizations. To help support the goal of having a balanced and diverse committee, the Departments encouraged self-nominations and conducted outreach to make the public and stakeholders aware of the opportunity to provide nominations.”).
26. Carol Sullivan, A Look at the 2020–2025 Dietary Guidelines for Americans, Harv. Health Blog (Mar. 10, 2021), https://www.health.harvard.edu/blog/a-look-at-the-2020-2025-dietary-guidelines-for-americans-2021031022098 [https://perma.cc/YLG4-VPRD].
27. Id.
28. Id.
29. Id.
30. See Mission Areas, U.S. Dept. Agric. https://www.usda.gov/our-agency/about-usda/mission-areas (last visited Oct. 10, 2024) [https://perma.cc/4YTR-HHQA].
31. U.S. Right to Know is a self-described “nonprofit public health research group.” About U.S. Right to Know, U.S. Right to Know, https://usrtk.org/about-u-s-right-to-know/ (last visited Sept. 25, 2024) [https://perma.cc/RTU8-S6RS].
32. Hana Mensendiek, Becky Morrison, Tanya Pampalone, Stacy Malkan & Gary Ruskin, Full Disclosure: Assessing Conflicts of Interest of the 2025 Dietary Guidelines Advisory Committee, available at https://usrtk.org/wp-content/uploads/dietary-guidelines-advisory-committee-conflicts-2023.pdf (last visited Sept. 25, 2024) [https://perma.cc/RT4G-S2JY] (“In total, we found that 13 of 20 DGAC members had high-risk (8), medium-risk (1), or possible (4) conflicts of interest. Members had ties with food (8 members), pharmaceutical (4), and weight loss (2) corporations or industry groups, most often in the form of research support and consultancy.”).
33. See id. at 4–6.
34. Interagency Food Safety Analytics Collaboration (IFSAC), CDC, https://www.cdc.gov/foodborneburden/attribution/partnerships.html (last visited Sept. 25, 2024) [https://perma.cc/4J89-CMBE] (“While CDC does not have regulatory authority for many food safety policies, the data that CDC collects and shares can influence policy and programmatic development through FDA and FSIS.”); International Health Regulations, WHO, https://www.who.int/health-topics/international-health-regulations#tab=tab_2 (last visited Sept. 25, 2024) [https://perma.cc/TQ6J-MH68] (“The responsibility for implementing the IHR rests upon all States Parties that are bound by the Regulations and on WHO. Governments are responsible, including all of their sectors, ministries, levels, officials and personnel for implementing IHR at the national level.”).
35. Infant and Toddler Nutrition, CDC Nutrition, https://www.cdc.gov/nutrition/infantandtoddlernutrition/index.html (last updated June 3, 2022) [https://perma.cc/4PZZ-XJF2].
36. See id.
37. See id.
38. Infant and Young Child Feeding, World Health org. (Dec. 20, 2023), https://www.who.int/news-room/fact-sheets/detail/infant-and-young-child-feeding [https://perma.cc/TDZ8-TWYE].
39. Nutrient and Promotion Profile Model: Supporting Appropriate Promotion of Food Products for Infants and Young Children 6–36 months in the WHO European Region, World Health Org. Europe (Nov. 21, 2022), https://www.who.int/europe/publications/i/item/WHO-EURO-2022-6681-46447-67287 [https://perma.cc/M4KZ-N878] [hereinafter Supporting Appropriate Promotion].
40. Id.
41. How Do Baby Foods Perform on Nutrition and Promotion?, Nutrition and Promotion Profile Model, https://babyfoodnppm.org/ (last visited Oct. 2, 2024) [https://perma.cc/FE4V-KEAN].
42. Id.
43. The WHOimplicitly suggests that the NPPM can be selected as the basis of regulation. See Supporting Appropriate Promotion, supra note 39 (“The NPPM sets out nutrient and promotional requirements across different product categories. It may be adopted in full or locally adapted to evaluate product suitability, inform product reformulation and guide policy reform to support public health goals for optimal infant nutrition and development.”).
44. See infra Section IV.
45. See generally Daisy H. Coyle et al., An Evaluation of the Nutritional and Promotional Profile of Commercial Foods for Infants and Toddlers in the United States, 16 Nutrients 2782 (2024).
46. Id. at 2782.
47. Id.
48. Id.
49. Id.
50. See id.
51. See id.
52. Id.
53. Id.
54. See Alannis Jáquez, The Nanny State: A Conservative Concern or a Misogynistic Myth?, Colum. Polit. Rev. (Apr. 11, 2022), https://www.cpreview.org/articles/2022/4/the-nanny-state-a-conservative-concern-or-a-misogynistic-myth [https://perma.cc/MVX8-MNY7].
55. See id.
56. For discussion of the time and schedule stresses of contemporary parenthood, see Sigrid Luhr et al., Parenting without Predictability: Precarious Schedules, Parental Strain, and Work-Life Conflict, 8 Russell Sage Foundation J. of Soc. Sci. 24 (2022).
57. See Joslyn Brenton et al., Time to Cook is a Luxury Many Families Just Don’t Have, Today’s Parent, https://www.todaysparent.com/family/family-health/time-to-cook-is-a-luxury-many-families-dont-have/ (Aug. 7, 2019) [https://perma.cc/Q5SM-L9NN].
58. See Melissa L. Horning et al., Reasons Parents Buy Prepackaged, Processed Meals: It is More Complicated than “I Don’t Have Time,” 49 J. Nutrition Educ. Behav. 60, 64 (2018) (stating “[t]he present study evaluated reasons parents with school-age children buy prepackaged, processed meals. The most commonly endorsed reason for purchasing was not having enough time to prepare other foods.” The study found other reasons, although none as commonly reported as time pressure).
59. See Coyle et al., supra note 45.
60. Infant Nutrition, WHO, https://www.who.int/health-topics/infant-nutrition#tab=tab_1 (last visited Oct. 11, 2024) [https://perma.cc/GGS3-WPN9].
61. Id. (“Correct feeding in the first three years of life is particularly important due to its role in lowering morbidity and mortality, reducing the risk of chronic disease throughout their life span, and promoting regular mental and physical development.”); See also Nat’l Rsch. Council and Inst. of Med., From Neurons to Neighborhoods: The Science of Early Childhood Development 182–218 (Jack P. Shonkoff & Deborah A. Phillips, eds., 2000); Charles A. Nelson III & Laurel Gabard-Durnam, Early Adversity and Critical Periods: Neurodevelopmental Consequences of Violating the Expectable Environment, 43 Trends Neurosci. 133, 133 (2020).
62. Nat’l Rsch. Council and Inst. of Med., supra note 61, at 185 (“The development of the brain has a long trajectory, beginning within a few days after conception and continuing through adolescence and beyond. The nervous system undergoes its most dramatic development during the first few years of life.”).
63. Charles A. Nelson III & Laurel Gabard-Durnam, supra note 61, at 133 (“It is now widely recognized that children exposed to adverse life events in the first years of life are at increased risk for a variety of neural, behavioral and psychological sequelae. As we discuss in this paper, adverse events represent a violation of the expectable environment. If such violations occur during a critical period of brain development, the detrimental effects of early adversity are likely to be long-lasting.”).
64. See, e.g., Ashraf Soliman et al., Early and Long-Term Consequences of Nutritional Stunting: From Childhood to Adulthood, 92 Acta Biomed. 133 (discussing long-term consequences associated with poor childhood nutrition from birth to ages 3 to 4).
65. Anisha Mahajan et al., Dietary Sugar Intake Among Preschool-Aged Children: A Cross-Sectional Study, 9 Can. Med. Ass’n J. Open, 855 (2021).
66. See Hidden Sugars Could Contribute to Childhood Obesity, Univ. of Utah Health (Nov. 5, 2018), https://healthcare.utah.edu/the-scope/kids-zone/all/2018/11/hidden-sugars-could-contribute-childhood-obesity [https://perma.cc/2YZH-85E7].
67. M. Simmonds, A. Llewellyn, C. G. Owen & N. Wollacott, Predicting Adult Obesity from Childhood Obesity: A Systematic Review and Meta-analysis, 17 Obesity Revs. 95 (2016).
68. Id. at 95.
69. Obesity: Health Consequences of Being Overweight, WHO (Mar. 1, 2024), https://www.who.int/news-room/questions-and-answers/item/obesity-health-consequences-of-being-overweight [https://perma.cc/F2Y2-CTT2].
70. Qian Du et al., Sucrose Promotes Caries Progression by Disrupting the Microecological Balance in Oral Biofilms: An In Vitro Study, 10 Sci. Rep. 2961 (2020).
71. See Sujata Tungare & Arati G. Paranjpe, Diet and Nutrition to Prevent Dental Problems, Nat’l Libr. Med., https://www.ncbi.nlm.nih.gov/books/NBK534248/ (last updated July 10, 2023) [https://perma.cc/DTW5-87J8] (“The first few years after birth are critical since there is a massive dietary shift from exclusive milk and liquid diet to a modified adult diet.”).
72. Alyssa Simon et al., Adverse Childhood Experiences and Oral Health Outcomes in U.S. Children and Adolescents: A Cross-Sectional Study of the 2016 National Survey of Children’s Health, 18 Int’l J. Environ. Res. Pub. Health 1 (2021).
73. See supra notes 62-72 and accompanying text.
74. See supra Section V and accompanying text.
75. See, e.g., Elizabeth K. Dunford & Barry M. Popkin, Ultra-Processed Food for Infants and Toddlers; Dynamics of Supply and Demand, 101 Bull. World Health Org. 358 (2023).
76. See John H. Cochrane, Eugene F. Fama, Efficient Markets, and the Nobel Prize, Chi. Booth Rev. (May 20, 2014), https://www.chicagobooth.edu/review/eugene-fama-efficient-markets-and-the-nobel-prize [https://perma.cc/3FYX-STVU] (noting Fama’s definition of an efficient market as one that incorporates all available information).
77. See María Parra-Murillo et al., Claims on Ready-to-Eat Cereals: Are Those With Claims Healthier?, Frontiers in Nutrition (Nov. 26, 2021) (finding nearly all products marketed with health claims in the six largest supermarket chains in Colombia were actually high in sugar); Beatrice Wihlander, Nestlé Accused of Irresponsible Marketing with “Fake” Nutrition Claims on KitKat Cereals, Nutrition Insight (May 16, 2023), https://www.nutritioninsight.com/news/nestle-accused-of-irresponsible-marketing-with-fake-nutrition-claims-on-kitkat-cereals.html [https://perma.cc/TEF7-HGEG] (noting that food organizations have contacted the CEO of Nestlé UK and Ireland, contending that the nutrition claims about its KitKat cereals are inaccurate).
78. See supra notes 22-24 and accompanying text.
79. See supra note 9 and accompanying text.
80. See supra notes 22-24 and accompanying text.
81. About the U.S. Department of Agriculture, USDA, https://www.usda.gov/our-agency/about-usda (last visited Oct. 2, 2024) [https://perma.cc/V55S-4RYN].
82. See supra Sections IV–V.
The full text of this Article is available to download as a PDF.