Can the FDA Ban Cupcakes?

kbooth FDA, Health Law Policy, Katie Booth, Obesity, Personal Responsibility, Public Health

By Katie Booth

In the spirit of Valentine’s Day, I wanted to discuss an important issue: Can the FDA ban cupcakes? While this may seem like a silly question, the Center for Science in the Public Interest (“CSPI”) has filed a petition with the FDA urging the agency to regulate the amount of sugar (including high fructose corn syrup) in soft drinks. According to the executive director of CSPI, sugar is a “slow-acting but ruthlessly efficient bioweapon” that causes “obesity, diabetes, and heart disease.”

If soft drinks are a problem, surely cupcakes are too. A twelve-ounce can of Coca-Cola contains 39 grams of sugar. A seasonally-appropriate red velvet cupcake from Sprinkles contains 45 grams of sugar—and who can eat just one? National cupcake consumption increased 52% between 2010 and 2011, and U.S. consumers ate over 770 million cupcakes last year. Sugary soft drink consumption, on the other hand, is down 23% since 1998 and 37% since 2000.

While the FDA can’t regulate sugar as a bioweapon, it probably could regulate sugar as a food additive. Under the Food, Drug, and Cosmetic Act, a food additive is “any substance the intended use of which results or may reasonably be expected to result—directly or indirectly—in its becoming a component or otherwise affecting the characteristics of any food.” This broad definition would include sugar. The FDA does not, however, regulate food additives that are “generally recognized as safe” (“GRAS”). Presumably the FDA considers sugar to be GRAS—for now.

If the FDA were to regulate sugar as a food additive, it would consider “1) the composition and properties of the substance, 2) the amount that would typically be consumed, 3) immediate and long-term health effects, and 4) various safety factors.” Sodas and cupcakes often contain 40 grams of sugar—over twice the recommended daily intake for women. The consumption of high levels of sugar can lead to serious health consequences in the long term. According to researchers, “[s]ugar-related diseases are costing America around $150 billion a year.” This certainly seems like a big enough problem to justify FDA regulation of sugar.

But that would mean no cupcakes on Valentine’s Day. No cakes on your birthday. No cookie decorating during the winter holidays. Or, at least, no cupcakes, birthday cakes, or cookies that were actually worth eating. The real problem with regulating sugar is that it is present in large quantities in some of the things we like most and eat only occasionally. While I could give up sugary soda, I don’t want to give up celebratory sweets. One heartening fact is that America’s sugary soda consumption has dropped significantly in the past decade. It seems like consumers are becoming more aware of the health risks of sugary soft drinks. This is a good reason for health officials to focus on information campaigns rather than an outright sugar ban. This type of regulatory approach may improve public health while maintaining consumer choice. After all, what’s Valentine’s Day without a cupcake?

kbooth

Katie Booth Wellington was a Student Fellow during the 2012-2013 academic year. At the conclusion of her fellowship, she was a third-year law student at Harvard Law School with a focus on health care law. She attended Yale University, where she majored in English. Prior to law school, Katie worked for two years as a management consultant for pharmaceutical, biotech, and agribusiness companies. Katie was the joint Editor-in-Chief of the Harvard Journal of Law and Technology, which focuses on intellectual property law, health law, and technology law issues. During law school, Katie interned in the Health Care Fraud Unit of the United States Attorney’s Office in Boston and in the Health Care Group at Ropes & Gray. During her fellowship, Katie researched the problem of cyberattacks on wireless medical devices, focusing on the current U.S. legal and regulatory structure.

6 thoughts to “Can the FDA Ban Cupcakes?”

  1. “The real problem with regulating sugar is that it is present in large quantities in some of the things we like most and eat only occasionally.”

    This is the problem…many people don’t eat these things “only occasionally”.

  2. Yes, I totally agree, what is Valentine’s day without a cupcake? Traditions and enjoying them are threatened by ridiculous regulation. I don’t think it’s the business of the government to regulate sugar. However, how does an average person get any information that is contra to what big industry wants them to see? That’s the real dilemma of the modern American age. If we had an adequate educational system that taught and encouraged people to think – think for themselves, think critically about the media they encounter every minute, think to turn off the TV, just plain think, then we’d begin to have an adequate counter to the Media blitz. So no, the government shouldn’t do it. Decision-making shouldn’t come from the government top down, but instead from the bottom-up, by individuals.

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