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When Zero Means Some, Confusion Reigns
By Lisa Heinzerling*
As I have argued elsewhere, the transparency achieved by federal laws relating to food is only partial, and sometimes only serves to conceal a lie. If one wanted to see this principle in operation, one might turn to a recent federal district court decision from California.
In Backus v. Nestlé, the court granted a motion to dismiss a state-law consumer protection complaint objecting to the use and labeling of artificial trans fats in Nestlé’s “Coffee-mate” products. The plaintiff alleged that artificial trans fats were too dangerous to be used in food and that the labels on the front of packages of Coffee-mate products were false and misleading because they emphasized that these products had “0g Trans Fat” even though the products actually contained some trans fat. The court held that in permitting the continued, even if temporary, use of artificial trans fats in food and condoning the claim that food has zero grams of trans fat when in fact it contains some, federal regulations supplanted state-law claims challenging these practices.
Wait, you might be thinking, hasn’t the Food and Drug Administration (FDA) banned artificial trans fats in food? Doesn’t the FDA condemn food companies that misrepresent the contents of their products? The answers offer a confusing mix of yes and no.
One source of confusion is the FDA’s recent action on partially-hydrogenated oils (PHOs), the primary industrially-produced trans fatty acids. In 2015, the FDA made a final determination that “there is no longer a consensus among qualified experts that [PHOs] … are generally recognized as safe (GRAS) for any use in human food.” When a substance deliberately added to food is not “GRAS,” it is a “food additive” within the meaning of federal law, and as such it is presumed to be unsafe absent an affirmative showing of safety. When the FDA determined that PHOs were not GRAS, in other words, the FDA shifted the burden of proving safety to food producers and effectively banned PHOs from the food supply if the proof of their safety was not forthcoming.
After making this determination, the FDA gave food producers three years either to prove the safety of their products or to remove PHOs from their products. In dismissing the state-law complaint about Coffee-mate products, the federal district court held that the FDA’s three-year grace period for food sponsors preempted nearer-term application of state-law constraints against using these dangerous substances in food.
Consumers who read news accounts of the FDA’s “ban” on PHOs may be forgiven for being confused. They might reasonably believe that PHOs are prohibited right now (not true). They might reasonably have predicted that the FDA’s strong affirmation of the large-scale risks of PHOs would support rather than undermine state-law consumer action against use of these substances in food (wrong again, per Backus).
Another source of confusion is an earlier FDA action on trans fats. In 2003, responding to substantial evidence that consumption of trans fats increased the risk of heart disease, the FDA issued a rule on disclosing the presence of trans fats in food. The FDA required food companies to declare the presence and amount of trans fat in food products – if the products contained more than 0.5 grams of trans fat.
If a food product contained less than 0.5 grams of trans fat, companies could choose not to include information about trans fat in the nutrition facts panel. (The nutrition facts panel is the familiar rectangular, blue-and-white listing of calories, sugar content, vitamins, etc., on food packages.) If companies chose this course, FDA’s rule required them to include a footnote on the food package, stating that the food was “not a significant source of trans fat.” If, on the other hand, companies making food products containing less than 0.5 grams of trans fat chose to include trans fat on their products’ nutrition facts panel, the FDA instructed them to report “0 grams” as the amount of trans fat in their products. This instruction was based on the FDA’s judgment that it could not reliably detect trans fat levels in food below the cutoff level of 0.5 grams.
In other words, the FDA instructed the companies to report “some” trans fats as “zero.”
In Backus v. Nestlé, the district court condoned stretching the truth even more. The court found that the FDA’s embrace of a report of “0g” of trans fat on the nutrition facts panels of products containing up to 0.5 grams of trans fat supplanted state-law restrictions on front-of-package claims that products actually containing trans fat had zero grams of trans fat. The Backus court concluded that the FDA had a preference for keeping all of the information on the food package consistent. Thus, on the court’s reasoning, the lie allowed on the nutrition facts panel—showing “0g” trans fat even when the food contained some trans fat—had to be enlarged to include front-of-package material as well. As they say, once one starts to deceive, one must be prepared to keep going.
On its way to this puzzling result, the district court in Backus needed to distinguish a case in which the Ninth Circuit had found that state-law claims alleging that food products labeled with “No trans fat” were not preempted by federal law. The district court in Backus calmly explained that “No” means “not any,” but that “0g Trans Fat” means some.
In this topsy-turvy world, “zero” means “some,” but “no” means “none.” Get it?
* Lisa Heinzerling is the Justice William J. Brennan, Jr., Professor of Law at Georgetown University Law Center.
Image by BrokenSphere – Own work, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=10952493
Another perspective on Community Policing, Part Two
By Ronald E. Hampton*
Critics of community policing say that the idea of a friendly beat officer acting as some magic bullet solution for serious crimes such as murders, rapes, assaults, big-time, sophisticated drug dealing and the rising tide of violence fueled by drugs, is laughable.
Yet community policing techniques are appropriate for more serious crimes. Once one starts analyzing who commits crimes, one finds that to the extent people do experience serious crimes—especially assault, rape and murder—often the crime is committed by someone they know and sometimes quite intimately. Yet, police departments are built around responding to predator/stranger crime, in spite of the fact that when we break down serious crime, the predator/stranger often turns out to be a date, an acquaintance or someone in the community.
Community policing advocates have called for a rethinking of both the nature of the crime and the role of the police in crime control and prevention. Rethinking the crime problem means shifting away from the predator/stranger strategies and focusing on crime indices. It requires moving towards notions of what constitutes disorder and how it can be contained and reversed before it leads to serious crime. Rethinking the role of the police includes abandoning traditional notions of what it means to fight crime.
Police today seem to hold back and wait until something happens. Then they go in with their lights flashing and sirens screaming. As a matter of fact, this reactive mode is relatively passive in comparison to the community policing model, which allows the officer to work very aggressively, but in a pro-active fashion, to stop or reduce the problems before they start. Moreover, community policing can, if implemented well, be cost effective in many ways.
All of this is, of course, diametrically opposed to the standard military style of instruction that police officers receive. Police training tends to view the officer as a vessel to be emptied and then filled and indoctrinated with precisely the knowledge that the institution wishes to convey. Moreover, the military style of training is closely reflected in, for instance, language such as “war on crime” and “war on drugs”. So, does an emphasis on community work and building problem solving skills adequately prepare officers for what they have to face on the street? Or, do police have to be tough as nails to do the job?
Frankly, one thing that is rarely communicated in training is the level of fear experienced by the police officers themselves. Police officers encounter the worst elements of criminal activity in a community. This explains, in part, the degree of fear and anxiety experienced by the police. Therefore, reintroducing the police into the neighborhood as part of the community has to be done in close collaboration with the citizens for the safety of the community and the police.
On closer examination, the community model seems genuinely tough and radical in ways that would appeal to conservatives and liberals alike. When all is said and done, community policing emphasizes grass-roots networking and citizen empowerment. It also suggests a radical decentralization of power in police bureaucracies, shifting authority away from hierarchical chains of command, out toward the precinct houses and line officers working with communities to develop local strategies.
People are going to have the opportunity to patrol with the police, introducing them to the law-abiding citizens and helping to alleviate the fear experienced when entering new neighborhoods. Also, whenever officers work within a community policing framework, they develop a sense of satisfaction and real accomplishment. Finally, both the citizens and the police can repossess their community from criminals.
The health and welfare of a community is a collaborative and collective responsibility. It is only with a genuine sense of responsibility and action that our neighborhoods can be transformed from being killing fields to fertile fields of human potential.
Click here to read the articles in HLPR Volume 10.1, with the symposium topic “Policing in America on the 50th Anniversary of Miranda v. Arizona.”
* Ronald E. Hampton is a twenty-four year retired veteran of the D.C. Metropolitan Police Department and served as the Executive Director of the National Black Police Association for over twenty years. Currently, he is serving as the Convener/ Chair of the Institute of the Black World 21st Century Police Reform and Accountability Task Force. The mission of the task force is to identify evidence-based practices and develop recommendations related to the restructuring of law enforcement as well as criminal justice policies and practices designed to address the mistrust and extra-legal behavior exhibited by police personnel in communities of color throughout the USA.
HLPR 2016 Symposium Day 3: Prof. Franklin Zimring on International Comparisons of Killings of and by Police
Panelists:
Franklin Zimring, William G Simon Professor of Law at U.C. Berkeley
Philip Heymann, James Barr Ames Professor of Law at Harvard Law School
By Kate Epstein
“Every year there are dozens of articles in law reviews about capital punishment, and there are none about the use of lethal force,” said Prof. Frank Zimring. The third day of the HLPR Symposium focused on that lethal force, centering on a discussion of police killings in the United States through a comparative international lens. Prof. Zimring described his article, Can Foreign Experience Inform U.S. Policy on Killings of and by Police?, which compares the rate of killings of and by police in the United States to other countries like Germany and the U.K. Prof. Phillip Heymann responded.
The talk began with Prof. Zimring comparing the handfuls of police deaths in England, Wales, and Germany to the approximately 1,000 deaths in the United States. His article contains a statistical analysis of these numbers, controlling for variables including the United States’ higher level of overall violence based on the national homicide rate. His ultimate conclusion is that “the elephant in the living room when you do international comparisons … is that there are 60 million concealable handguns in the United States.” The existence of concealable guns, he argues, accounts for higher rates of casualties in police interactions. In altercations without civilian gun ownership, the risk to police officers is much lower. “Only one thing other than a bomb can kill a police officer, and that is a gun.” In his comparison countries, the level of handgun ownership is much lower, and without guns, interactions turn violent less often, and fatal even more rarely.
Prof. Heymann followed up, asking whether alternative explanations—anger of police or civilians, cultural differences, or civilian actions—could account for the different numbers. Given the scale of difference, Prof. Zimring thinks not.
Prof. Zimring had two concrete suggestions, centering on effective administrative controls within police departments. He suggested that, like the U.K., we should publish statistics from each police department about violent encounters which can be used to hold individual departments accountable. His other major suggestion was police management. Based on analysis of seven years of shootings in Chicago, he noted that fatality rates were much lower when police fired fewer shots in a given encounter. Policies to stop shooting earlier—for example, when a civilian is running away, or already on the ground—could prevent a number of deaths each year. By recognizing the effect of gun ownership on police killings, Prof. Zimring proposed that we can make simple, concrete changes to minimize use of lethal force. The talk was cosponsored by ACS and the DOS Grant Fund.
HLPR Student Note Competition Submissions Due January 8
HLPR is seeking submissions for its Student Note Competition, to be published in Vol. 10.2 in summer 2016. We are seeking policy-oriented pieces that are 4,000–13,000 words, shorter in length than a typical journal article. The deadline for submissions for the Summer 2016 issue is Friday, January 8th. Submissions should be sent to HarvardLPRSubmissions@