The Beginning of the Broccoli Mandate?

By Deborah Cho

In National Federation of Independent Businesses v. Sebelius, 132 S. Ct. 2566  (2012), the Court famously struck down the “individual mandate” of the ACA under the Commerce Clause.  The Chief Justice noted that the Government’s argument for regulation under the Commerce Clause — that individuals were participating in interstate commerce by not purchasing health insurance and were thereby subject to regulation — “would justify a mandatory purchase to solve almost any problem.”  He continued, “To consider a different example in the health care market, many Americans do not eat a balanced diet.  [The] failure of that group to have a healthy diet increases health care costs, to a greater extent than the failure of the uninsured to purchase insurance . . . Under the Government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables.”

This hypothetical was raised as an example of a potential absurd result of accepting the Government’s line of reasoning in this case.  It was provided as an extreme outcome to catch the reader’s attention.  Justice Ginsburg even responded to this “broccoli horrible” hypothetical by stating that the Court would have to accept a lengthy chain of inferences, something that the Court has refused to do in the past, to find that a vegetable-purchase mandate would affect health-care costs.  Some of those inferences included accepting that individuals would eat the vegetables rather than throw them away once purchased, that they would cut back on other unhealthy foods, and that the healthy diet would not be offset by an individual’s lack of exercise.  In addition to this piling of inferences, Justice Ginsburg noted that the democratic process would serve as a “formidable check” to prevent a situation such as the broccoli horrible.   Discussions about this broccoli mandate outside the courtroom were framed similarly.  One article from 2012 stated that Congress would need to be “crazy” to pass such legislation and that “absurd bills like a broccoli mandate are likely to fail other constitutional tests.”

Yet, here we are, just a couple years later, and it seems that some of the weakest and most vulnerable in our population have indeed found themselves in the midst of the broccoli horrible. 

The USDA, with vocal support from the First Lady, has implemented new standards for meals served in school cafeterias – standards that include minimum vegetable servings and maximum fat contents.  In a movement that has been (inaccurately) associated with the  “#ThanksMichelleObama” tag, students across the country have been sharing pictures and stories of their disappointing school lunches.

While these standards do not implicate the federal government’s power under the Commerce Clause, they do seem to bring to life what once seemed unbelievable to Justice Ginsburg.  Mandating individuals to buy vegetables was earlier described as too many steps removed from solving the problem of unhealthy diets.  Now, forcing students to buy a standardized healthy lunch, without controlling for factors such as whether students actually eat the vegetables on their lunch trays or supplement their lunches with junk food throughout the day, has become a reality.  In fact, one study found that 60% of vegetables and 40% of fruit are indeed never eaten and instead are thrown away by students.  Students are utilizing their voices (namely, through their smartphones and hashtags) to share their disappointment, but the democratic process does not seem as formidable a check as described to these school children who can’t do much more than take pictures of the mystery meals they are being served.

Though there is arguably the option of bringing lunch from home, this may not be feasible for many children, just as leaving campus and getting food elsewhere may not be a possible.  So what we are left with is a nation of children eating unappetizing and underwhelming meals with calorie caps so low that growing children are now complaining of hunger.  What’s next?

3 thoughts to “The Beginning of the Broccoli Mandate?”

  1. The sentence above should read “the USDA has implemented new standards for *federally* subsidized meals served in *public* school cafeterias”. The government is already paying for this program and already had standards in placed to define spending. This is merely a change in the standards of a federal program to offer healthier options. Mandating that government-created lunches provided in a government-run cafeteria should include vegetables is entirely different from forcing someone to purchase vegetables in a private grocery store. This is not a mandate on personal behavior nor is it an intrusion into private institutions. It’s a federal policy followed by federal employees in a federal program. How could this possibly be a liberty issue?

    To say that this is parallel to the ‘broccoli horrible’ in anything other than subject matter seems misleading. When the government pays, it can stipulate how the money is spent. Just because someone partakes in a government benefit doesn’t mean a change in that benefit infringes on their rights. This is the same misguided logic that lead to the ‘get your government hands off my Medicare’ attitude during the Affordable Care Act debate. It’s fine to criticize if you think it’s a misguided policy, but I do not think this is a fair comparison.

  2. The groups that are exploiting vulnerable children are the food industry, school food service organizations, and their lobbyists, as the NYT article linked to in this blog post explains. Feeding children healthy meals in schools is a public health and government concern. And as any parent knows getting kids to eat healthy is a chore that has to be undertaken by adults– children’s resistance to fruits and vegetables is not a reason to throw pizza at them instead. Although more flexible meal options and local control sounds good in theory, in practice what we’ve seen is financial interests trumping children’s health.

  3. It would be easy to conclude from this post that the new school lunch standards are responsible for the amount of food waste of fruits and vegetables. In fact, the statistics you cite are an improvement (at least in vegetables wasted) from those found in 2011, before the new standards went into effect. (See ‘Healthful school lunches do not result in more food waste, study finds’ http://www.minnpost.com/second-opinion/2014/03/healthful-school-lunches-do-not-result-more-food-waste-study-finds.)

    It’s also interesting that the link you provide for the statistics on waste (from the Harvard School of Public Health) not only points this out, but has the title ‘New school meal standards significantly increase fruit, vegetable consumption.’

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