In recent months, we've seen an unusual amount of attention devoted to trans fats. Restaurant chains are rushing to announce the total or partial elimination of them from the foods they serve. The list includes such diverse establishments as KFC, Starbucks and Bennigan's. Even the Royal Caribbean Cruise Line has jumped on the bandwagon.
This comes at a time when some cities and states are considering or enacting prohibitions against the use of trans fats in restaurant foods.
It's difficult to argue that trans fats are good for you, but it's also difficult to argue that their immediate removal from the food supply, sometimes to be replaced with saturated fats, deserves this much sudden effort and attention. The assertion that trans fat increases a person's risk of coronary heart disease is not entirely without controversy.
Since mandatory nutrition labeling became effective in 1994, there have been "bad nutrients" included in the nutrition facts panel. They include sodium, cholesterol, saturated fat, calories from fat and, for certain dieters, total carbohydrates. Mandatory declaration of trans fat content began in 2006, and this prompted many food manufacturers to replace trans fats. If trans fats had been included in the list from the beginning, we almost certainly would not have seen such a sudden rush within the food industry to get rid of it.
The health concern associated with trans fat is that it may elevate "bad cholesterol" while at the same time decreasing "good cholesterol," thereby increasing the risk of heart disease. It also has been suggested that in clinical trials, trans fatty acids replace cholesterol-lowering fatty acids such as oleic and linoleic acids, thus giving an appearance that increased bad cholesterol was caused by the trans fat. For better or for worse, however, there seems to be no real, ongoing scientific debate about whether trans fats are truly dangerous. The jury is in, and trans fats are on the way out.
Reporting on trans fats in the media is sometimes garbled. Many reports associate trans fats with obesity. An editorial in the Washington Post called on FDA to revoke the "generally recognized as safe" (GRAS) status of trans fats. There is no existing GRAS regulation to be revoked. Technically speaking, FDA would need to adopt a regulation prohibiting the use of trans fats in human food. FDA does not seem to be entertaining such a move. Jumping on the trans fat bandwagon, for the sake of replacing trans fat with saturated fat, should not be on FDA's regulatory agenda.
Some segments of the food industry might actually prefer to see FDA announce a prohibition against the use of trans fats, with a reasonable implementation deadline. This might stop states and cities from enacting their own prohibitions with sudden compliance deadlines.
It is not easy for large restaurant chains, for example, to switch quickly from hydrogenated fats and oils to substitutes that are free of trans fats. The switch requires extensive research and development, taste testing, securing adequate supplies of the substitutes and doing all of this in a way that does not unreasonably increase the cost of the finished food.
Some consumer activists and food industry critics would no doubt be pleased to see large restaurant chains struggle to survive without trans fats. The pressure on restaurant chains to eliminate trans fats almost immediately is unfair. The risk associated with trans fats, if accepted at face value, is something that manifests itself upon chronic consumption. There is no need to eliminate them immediately from the diet.
Furthermore, there is something unbalanced about the relative focus on trans fats vs. saturated fats. The real problem facing the food industry is that trans fats have become "politically incorrect" or popular to attack. Almost certainly, the real risk associated with a doughnut is not different from the risk associated with a serving of brie cheese.
A better model for promoting a safe and healthy diet would be to eliminate "nanny state" solutions. Educating consumers and encouraging them to choose a healthy diet, with a little room for doughnuts and a little room for brie, would be a better solution. If we instead go down the path of prohibiting politically incorrect foods, we must ask ourselves what foods and food ingredients will be targeted next.David Joy is a partner in the Washington, D.C., office of Keller and Heckman LLP. He specializes in food and drug law with emphasis on the domestic and international regulation of food, food additives, food labeling, antimicrobial pesticides and medical devices. He is a member of the District of Columbia Bar and holds a bachelor's degree in chemistry. For more information about Keller and Heckman, visit the firm's web site at www.khlaw.com.