Guest Blog: Standardizing portions could help stem the obesity epidemic

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By Deborah A. Cohen, MD, MPH

The past few decades have seen dramatic changes in the food environment and food behaviors, all resulting in the epidemics of obesity and diet-related chronic diseases.  About 72% of American adults are overweight or obese and more than half have diet-related chronic diseases. Our research shows that the food environment actually encourages people to eat impulsively and markets twice as much food as people need to maintain a healthy weight.  Our diets are largely influenced by the relative supply and availability of different food products, by marketing, and by other factors we aren’t even aware of.1-3  Restaurants are among the largest risk factors for a poor diet.

Here’s a rather shocking statistic: most Americans dine out between 4-5x per week and, on average, spend 55% of all their food dollars on meals and snacks away from home.4,5  The problem is that away-from-home meals are often inferior in nutritional quality to meals prepared at home – they tend to be higher in salt, fat, and calories, and lower in fruit, vegetables, and whole grains; they also typically include 2-3 times more calories than we need to maintain a healthy weight.6,7  Indeed, portion sizes have been increasing substantially over the past three decades.8

When people dine away from home, their ability to control portion sizes, and thus caloric intake, is limited. Studies demonstrate that we all eat more when we are served more. 9,10   As portion size increases, calories go up. The results are stunning:  Laboratory based studies in both adults,11,12 and children13,14 show that when larger portion sizes are served, calories go up as much as 30% with no differences in self-reported hunger.  So eating out – which we do a lot more than we used to – is a major contributor to weight gain and increases the risk of obesity and chronic diseases.6 Multiple studies support the association between frequency of meals consumed in restaurants and the risk for overweight.15-18

My research looks at how portion sizes can be made transparent and predictable with the hope that this would have an enormous benefit for America’s obesity crisis. Smaller, standardized portions are a practical and feasible solution to help stem the obesity epidemic.

Portion control has also proven to be an effective measure to reduce the amount – and therefore the harm – of alcohol consumption.19,20 Alcoholic beverages are classified by the percentage of alcohol content and the U.S. government defines a standard drink as containing 0.6 oz. of alcohol. Standard drink sizes are 12 ounces for a standard beer, 5 ounces for a glass of wine, and 1.5 ounce shot of 80 proof spirits.  These standard portion sizes allow us to measure a standard drink and to limit the risk of inebriation. Many states mandate that alcohol be served in standard portions; twelve states also require that larger portions of alcohol carry a higher price.21  Applying these principles to food could be an enormous aid, since people are not reliably able to judge what constitutes an appropriate individual portion just by looks.22-24 Standard portions are also a necessity for medications.  Many consider food as “medicine”, so applying portion standards to food is a natural extension that could improve health outcomes. That was our goal.

Piloting the Solution: Standardized Portions

Under a National Institutes of Health funded planning grant, my colleagues and I  developed guidelines for standard portions .  With input and guidance from an advisory board composed of nationally recognized nutrition researchers, we set calorie limits for meals at 700 calories each for lunch and dinner, 500 calories for breakfast and 200 calories for snacks.  We separated meal components into appetizers (150 calories), soups (150 calories), dressings and salads (150 calories), plain entrees (200 calories) for breakfast, lunch and dinner, mixed entrees (350 calories), non-starchy sides (100 calories), starchy sides (150 calories), beverages and desserts (100 calories).25

We conducted a pilot study with three local restaurants in Southern California. We incentivized these establishments to create an alternative menu to their usual offerings, providing meals in quantities that met the above caloric guidelines. We offered restaurants a $2000 participation fee as well as paying for all the costs of the menu development and printing, and purchasing gift cards to offer customers as part of the evaluation. The restaurants created new “Balanced Portions” menus, which included 6-8 items from their regular menu. The meals were not intended for weight loss purposes, but are only designed to prevent unintended overconsumption.

We began our pilot project by  asking restaurant managers to identify which menu items were the most popular. The project did not change any preparation or recipes. Not surprisingly, even though we would be reducing the quantity of some items served and increasing the quantity of others, none of the restaurants were interested in reducing the price of any item for offering less.

One restaurant did not want to change the price or the quantity, we plated the calorically set portions and then had them pack the remaining food for carry out.   (see Figure 1, top menu.) When we measured the original food quantities, in most cases the amounts served were double the guidelines for a single meal, so leftovers were sufficient for a second meal. The meal was marketed as “Dinner today, Lunch tomorrow”.

The other two pilot restaurants were not interested in packing up extra food, so they created an alternative menu by selecting menu items that already met the guidelines. The owners came up with new prices comparable to other selections on the menu. At yet another restaurant, the regular menu only included entrees and sides, so to get variety, people needed to order several large dishes. The new menu allowed people to get variety with one order. In all cases we requested that each meal contain at least one cup of vegetables. We piloted this with 3 restaurants: First Szechuan Wok, Dave’s Deli & Catering, and Delhi Belly. (Figure 1)

Once we verified the quantity of food to be plated as a serving size, we sent the meals out for calorimetry (measures calories) to verify that the calories would be <700.  All the meals met the criteria. We then held a training session for restaurant staff and provided written guidelines on food to be plated for each menu item. We provided restaurants with measuring cups and kitchen scales so they could meet the guidelines. The plates were full, as we generally increased the quantity of vegetables and reduced the quantity of meats and starchy sides. The restaurants all passed the training session.

Feedback from Customers. Once the menus were launched and made accessible to patrons, we invited customers to provide feedback on the menus and their experience and offered them gift cards from the restaurant for their participation, whether or not they ordered from the Balanced Portions Menu.

Overall, the feedback on the alternative Balanced Portions menus from customers was positive. We conducted in-person and phone interviews with 33 customers (56% ordered from the Balanced Portions menu) who dined at one of the three restaurants. Findings from the one-on-one interviews revealed that 16 of the 18 customers who ordered from the Balanced Portions expressed satisfaction with their meals and shared that they “would love” to see Balanced Portion menus offered at other restaurants. In addition, the availability of Balanced Portions menu may help them reduce food waste, maintain healthy eating habits, and meet recommended dietary guidelines. Interestingly, among those who ordered from the regular menu, one participant described the portions as “very generous” and more than half reported going home with leftovers.

However, some of the interviewees expressed concerns regarding cost and thought lowering the prices and offering more Balanced Portion menu options may encourage more people to opt for standardized portions. Some participants thought eliminating to-go options and offering smaller portions at lower prices would be most  appealing.

Adherence to Portion Sizes. We also assigned a research assistant (RA) to be a “secret shopper.” The RA ordered Balanced Portions meals to-go and then carefully measured each component with measuring cups and kitchen scales to determine adherence to the guidelines previously issued. In all but one case, the restaurants were adherent to the guidelines. At Delhi Belly they did give a little extra rice, and we advised the owner to be serve a bit less rice.

Conclusion: Our results were very promising.  We concluded that it is highly feasible for restaurants to offer meals with standard portions that reduce the risk of overconsumption, overweight and obesity associated with dining out. We also concluded that we will need more attention to the issue of Balanced Portions menus over time to inform future rollouts at a national level.  Furthermore, understanding the impact on customer attitudes and behavior will provide critical insights into how to scale this in the future. This research is a rewarding and promising first step, full of opportunities to effectively address the obesity crisis and its connection to eating food outside of home.

  1. Milliman RE. Using background music to affect the behavior of supermarket shoppers. Journal of Marketing. 1982;46(3):86-91.
  2. Milliman RE. The influence of background music on the behavior of restaurant patrons. Journal of Consumer Research. 1986;13(2):286-289.
  3. Curhan RC. The relationship between shelf space and unit sales in supermarkets. Journal of Marketing Research. 1972;9:406-412.
  4. Kant AK, Whitley MI, Graubard BI. Away from home meals: associations with biomarkers of chronic disease and dietary intake in American adults, NHANES 2005-2010. Int J Obes (Lond). 2015;39(5):820-827.10.1038/ijo.2014.183
  5. Saksena MJ, Okrent AM, Anekwe TD, et al. America’s Eating Habits: Food Away From Home. In. Wash, DC: USDA; 2018:https://www.ers.usda.gov/webdocs/publications/90228/eib-90196_summary.pdf?v=98073.90222
  6. Lin BH, Frazao E. Away-from-home foods increasingly important to quality of American diet. ERS/USDA. 1999;http://www.ers.usda.gov/Publications/AIB749/.
  7. Rosenheck R. A systematic review of a trajectory towards weight gain and obesity risk. Obes Rev. 2008;9(6):535-547.
  8. Nielsen SJ, Popkin BM. Patterns and trends in food portion sizes, 1977-1998. JAMA. 2003;289(4):450-453.
  9. Rolls BJ, Roe LS, Meengs JS. Larger portion sizes lead to a sustained increase in energy intake over 2 days. J Am Diet Assoc. 2006;106(4):543-549. http://www.ncbi.nlm.nih.gov/entrez/query.fcgi?cmd=Retrieve&db=PubMed&dopt=Citation&list_uids=16567150
  10. Diliberti N, Bordi PL, Conklin MT, Roe LS, Rolls BJ. Increased portion size leads to increased energy intake in a restaurant meal. Obes Res. 2004;12(3):562-568. http://www.ncbi.nlm.nih.gov/entrez/query.fcgi?cmd=Retrieve&db=PubMed&dopt=Citation&list_uids=15044675
  11. Rolls BJ, Morris EL, Roe LS. Portion size of food affects energy intake in normal-weight and overweight men and women. Am J Clin Nutr. 2002;76(6):1207-1213. http://www.ncbi.nlm.nih.gov/entrez/query.fcgi?cmd=Retrieve&db=PubMed&dopt=Citation&list_uids=12450884
  12. Kral TV, Roe LS, Rolls BJ. Combined effects of energy density and portion size on energy intake in women. Am J Clin Nutr. 2004;79(6):962-968. http://www.ncbi.nlm.nih.gov/entrez/query.fcgi?cmd=Retrieve&db=PubMed&dopt=Citation&list_uids=15159224
  13. Rolls BJ, Engell D, Birch LL. Serving portion size influences 5-year-old but not 3-year-old children’s food intakes. Journal of American Dietetic Association. 2000;100:232-234.
  14. McConahy KL, Smiciklas-Wright H, Birch LL, Mitchell DC, Picciano MF. Food portions are positively related to energy intake and body weight in early childhood. . Journal of Pediatrics. 2002;140:340-347.
  15. Ayala GX, Rogers M, Arredondo EM, Campbell NR, Baquero B, Duerksen SC, Elder JP. Away-from-home food intake and risk for obesity: examining the influence of context. Obesity (Silver Spring, Md). 2008;16(5):1002-1008. http://search.ebscohost.com/login.aspx?direct=true&db=cmedm&AN=18309297&site=ehost-live
  16. McCrory MA, Fuss PJ, Hays NP, Vinken AG, Greenberg AS, Roberts SB. Overeating in America: association between restaurant food consumption and body fatness in healthy adult men and women ages 19 to 80. Obes Res. 1999;7(6):564-571.
  17. Jeffery RW, French SA. Epidemic obesity in the United States: are fast foods and television viewing contributing? Am J Public Health. 1998;88(2):277-280.
  18. Hornick BA, Krester AJ, Nicklas TA. Menu modeling with MyPyramid food patterns: incremental dietary changes lead to dramatic improvements in diet quality of menus. J Am Diet Assoc. 2008;108(12):2077-2083. http://search.ebscohost.com/login.aspx?direct=true&db=cmedm&AN=19027412&site=ehost-live
  19. Voas RB, Fell JC. Preventing alcohol-related problems through health policy research. Alcohol Research & Health. 2010;33(1-2):18-28. http://search.ebscohost.com/login.aspx?direct=true&db=psyh&AN=2010-23622-003&site=ehost-live
  20. Anderson P, Chisholm D, Fuhr DC. Effectiveness and cost-effectiveness of policies and programmes to reduce the harm caused by alcohol. Lancet. 2009;373(9682):2234-2246. http://search.ebscohost.com/login.aspx?direct=true&db=cmedm&AN=19560605&site=ehost-live
  21. NHTSA. Preventing Over-consumption of Alcohol – Sales to the Intoxicated and “Happy Hour” (Drink Special) Laws http://www.nhtsa.dot.gov/people/injury/alcohol/PIREWeb/images/2240PIERFINAL.pdf. 2005.
  22. Levitsky DA, Obarzanek E, Mrdjenovic G, Strupp BJ. Imprecise control of energy intake: absence of a reduction in food intake following overfeeding in young adults. Physiol Behav. 2005;84(5):669-675. http://www.ncbi.nlm.nih.gov/entrez/query.fcgi?cmd=Retrieve&db=PubMed&dopt=Citation&list_uids=15885242
  23. Levitsky DA, Youn T. The more food young adults are served, the more they overeat. J Nutr. 2004;134(10):2546-2549. http://www.ncbi.nlm.nih.gov/entrez/query.fcgi?cmd=Retrieve&db=PubMed&dopt=Citation&list_uids=15465745
  24. Wansink B, Painter JE, North J. Bottomless bowls: why visual cues of portion size may influence intake. Obes Res. 2005;13(1):93-100. http://www.ncbi.nlm.nih.gov/entrez/query.fcgi?cmd=Retrieve&db=PubMed&dopt=Citation&list_uids=15761167
  25. Cohen DA, Story M, Economos C, Ty D, Martin S, Estrada E. Guidelines for Standard Portions in Away-From-Home Settings In:2023.

Guest Blog: The FABRIC act will address garment industry workplace concerns

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By Rebecca Ballard

Last year the first ever federal fashion bill, The FABRIC Act, was introduced in Congress, and it will be reintroduced this September. However, the intersection between labor rights, legislation, and the garment industry is far from new. The industry has been tied to labor abuses since before our country’s founding; it was cotton that enabled the United States to reach global economic prominence, and issues with forced labor in fashion continue to this day. And it is not just labor concerns linked to fashion, but key labor achievements as well. Many of the labor laws that govern our lives and workplaces took root in the garment industry.

As a guest blogger for NCL and a longtime partner with the organization, I am excited to briefly share the fascinating history linking the garment industry and labor movements, some of the present-day issues in the industry, and even an opportunity to advocate for change this year.

The Industrial Revolution and the U.S. Fashion Industry

The industrial revolution gave rise to the fashion industry as we know it today, bringing innovation and affordable mass-produced items as well as widespread workplace labor abuses, sweatshop conditions, and pollution. In fact, the beginning of the U.S. industrial revolution is often cited as the opening of a textile mill in Pawtucket, Rhode Island, in 1793. During the Industrial Revolution we saw women, including recent immigrants, and children take jobs in textile mills to supplement family income. Many of these workers were exploited, toiling sometimes for 16 hours a day during high demand periods, for a subsistence income; all too often they were subject to wage theft.

But through this work, many women garment workers also achieved a measure of independence, leaving homes and families, and some used that newfound independence to join social activist movements and advocate for improved labor conditions. Female workers in Lowell, Massachusetts, for example, formed America’s first women’s union in the 1830s, which focused on maximum hours laws, including a 10 hour work day and higher wages, and they conducted one of the first major labor strikes in this nation’s history. Workers in New York’s sweatshops were victims of harassment, wage theft, and terrible conditions, and the International Ladies Garment Workers Union and Amalgamated Clothing Workers of America unions formed to demand labor reforms there in the early 1900s.

The Triangle Shirtwaist Factory Fire and Subsequent Labor Reforms 

Just as unions were gaining strength, the United States saw a devastating example of the incredible harms that can take place in the garment industry. Near closing time on March 25, 1911, the factory fire that broke out at the Triangle Shirtwaist Factory killed 146 workers, many of whom were immigrant women and girls. The building’s only fire escape building had collapsed during the rescue effort. Machinery and tables crushed workers, while locked doors trapped them, and there were only a few buckets of water to douse the flames. Firefighter ladders were too short to reach the 9th floor and safety nets ripped. The survivors from the 500-plus Triangle Shirtwaist Factory recounted the horrors they witnessed, including their fellow workers leaping to their deaths from the 9th floor rather than being burned alive. Some victims were as young as 14 years old.

In New York state, this tragedy prompted the transformation of the state’s labor and fire codes, thirty-six new state laws, and increased labor funding. The New Deal era under President Franklin Roosevelt saw adoption of similar legislation at the federal level nearly 20 years later with the support of some of these same reformers, like Frances Perkins who witnessed the Triangle Shirtwaist Factory fire herself and later became the Secretary of Labor under President Roosevelt. The Occupational Safety and Health Administration, country-wise fire and safety laws, and the Fair Labor Standards Act could be said to have arisen from laws enacted in New York after the Triangle Shirtwaist Factory fire.

Following the lead of women’s suffrage groups, and often in concert with women’s rights leaders, a number of trade unions formed to support the rights of garment workers. Roosevelt’s New Deal offered legal protection to unions, and through union gains and New Deal programs sweatshop conditions lessened and wages increased. However this brief period of reforms for workers in the US garment industry did not continue when the industry expanded and much of the industry moved abroad.

In addition to labor issues, the modern garment industry continues the environmental degradation that started during the industrial revolution. The industry today is playing a role in climate change and not on track to meet key climate goals and operate within planetary boundaries in its current form. Overproduction as well as over-purchasing are both extreme, and there are presently enough clothes on our planet to clothe six generations of people. Waste is often exported to other countries, hurting local economies and climates through waste colonialism. The industry continues to be powered by coal and uses toxic chemicals that are dangerous for workers, wearers, and our planet. Water usage is also highly problematic. For example, it takes over 2,000 liters of water to make just one t-shirt, around as much as one person drinks in three years. The water used in clothing creation, as well as clothing use, is often filled with microfibers that reach even the depths of our oceans and cause great harm to planetary ecosystems.

California Legislation

Sweatshops reemerged in the 1960s due to a range of forces in the U.S. and abroad: the changing retail industry, the growing global economy, increased contracting, and a large number of immigrant workers in the U.S. In the 1970s, manufacturers began outsourcing production to other countries to lower labor costs and employ a more compliant, non-union worker base. Despite increased consumption and a growing population, the number of U.S.-based garment workers dropped 37 percent, from 1.2 million in 1970 to 760,000 in 1995.

When sweatshops reemerged on U.S. soil they brought with them many horrific practices.  In California in the 1990s, the El Monte sweatshop, was subject to a raid that uncovered workers held behind fences surrounded by razor wire. These modern-day sweatshops exposed brutal conditions, with many tricked into accepting U.S. employment while living in other countries and once here being subject to debt bondage, threats of harm to them or their families, and violations of wage and hour codes. 

The 2021 California’s Garment Worker Protection Act (SB 62) enacted many statewide reforms for the industry in the state with the greatest number of garment workers. This landmark law aims to end wage theft and the payment of less than a minimum wage to garment workers by ending the piece rate of payment and creating liability for contractors for the full amount of unpaid wages and reimbursement of expenses, no matter how many layers of contracting are used. It also aims to enhance workplace safety by having garment workers no longer need to work at unsafe speeds to complete as many items as possible each day to reach a fair rate of pay.

The FABRIC Act

On the federal level, promising reforms include the first federal fashion industry bill, The Fashioning Accountability and Building Real Institution Change (FABRIC) Act, which was introduced in 2022 and will be reintroduced this September. A federal Lobby Day on September 12th is planned in partnership with national worker rights and sustainable fashion NGOs. The FABRIC Act follows in the footsteps of California’s SB62 by eliminating the piece rate and creating joint and several liability for violations of the law.  The FABRIC Act also creates a national garment manufacturing registry and incentivizes domestic production through a $40 million garment manufacturing grant program and reshoring tax credits. Anyone is welcome to be a part of the Lobby Day, and can sign up to volunteer here.

It is time to give Medicare beneficiaries effective obesity care

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Sally Greenberg

By Sally Greenberg, Chief Executive Officer

“What we’ve got here is a failure to communicate.”

As one of the most recognized quotes of all time, this line from the 1967 movie, Cool Hand Luke, originally addressed the struggle of a person’s will over government control.

Now the line is applicable to another and equally intractable struggle: ending outdated Medicare rules that leave millions of seniors with diagnosed obesity – particularly members of Black and Latino communities – vulnerable to disability, disease and premature death due to lack of access to the full range of treatment options.

The struggle is not new. As documented in a 2010 report from the US Surgeon General, the prevalence of obesity began to increase sharply in the 1980s and by the 1990s, public health leaders were calling obesity a national emergency. Now, the obesity rate among adult Americans exceeds 40 percent but is even higher among communities of color: virtually half of African Americans (49.6 percent) and 44.8 percent of Hispanics are living with obesity. Moreover, because obesity is directly linked to over 230 medical conditions, the disease is responsible for an estimated 400,000 deaths a year, costing the nation over $1.72 trillion annually in direct and indirect health costs.

Confronting this growing crisis, in 2012, the United States Preventive Services Task Force (USPSTF) issued guidelines recommending screening all U.S. adults aged 18 and above for overweight and obesity and encouraging clinicians to treat or refer adults with obesity for treatment. Then, in 2013, the American Medical Association officially recognized obesity as “a disease state” on a par with other serious chronic diseases, like type 2 diabetes and hypertension, so healthcare professionals (HCPs) would be motivated to diagnose, counsel and treat obesity. These actions were the impetus for most private insurers, state health plans and state Medicaid programs to cover obesity care to some degree. Moreover, the Office of Personnel Management, which oversees health coverage for federal employees, now requires that insurers cover the full range of obesity treatment options, including intensive behavioral therapy (IBT), prescription weight loss drugs, and bariatric surgery. Additionally. Tri-Care, which covers military personnel and their families, and the Veterans Administration cover AOMs for adults who do not achieve weight loss goals through diet and exercise alone.

This leaves the Medicare program, which today represents the biggest obstacle impeding access to quality obesity care. Outdated Medicare Part B policy places undue restrictions on intensive behavioral therapy by allowing only primary care providers to deliver IBT and severely restricting the physical locations where this care can occur. Equally troubling, new FDA-approved anti-obesity medications (AOMs) are excluded from Medicare coverage based on a statutory prohibition tracing back to the start of the Part D program. This was in 2003 when fen-phen (the drug combination of fenfluramine and phentermine) controversy raised questions about the safety of weight loss drugs, leading the Centers for Medicare and Medicaid Services (CMS) to classify these medicines as “cosmetic” treatments not eligible for coverage, just like hair loss drugs and cold and flu treatments.

But obesity medicine has improved substantially since 2003. Due to the latest science on obesity as a serious chronic disease, there have been major advances in drug development, including new anti-obesity medications that achieve meaningful weight loss. Yet, while science has moved forward, CMS policy is stuck in the past.

To change this situation, advocates have gone to both Congress and CMS for help. In Congress, public health and aging organizations have been working to pass bipartisan legislation called the Treat and Reduce Obesity Act (TROA) that would end the exclusion under Medicare Part D prohibiting coverage for AOMs and change Medicare Part B rules to permit all qualified health practitioners to provide Intensive Behavioral Therapy (IBT) to Medicare beneficiaries. With CMS, advocates have written to and met with key staffers on several occasions, urging the agency to use its inherent authority to allow flexibility to include drugs under Part D that might otherwise be excluded. One key argument is that CMS has already done this on multiple occasions, ending exclusions for treatments for AIDS wasting and other medical conditions when it is urgent to do so.   And yet, ten years have passed since AMA classified obesity as a chronic disease with no action from either Congress or CMS. In Congress, TROA did not receive a floor vote in the House of Representatives in 2022 despite having 154 co-sponsors and widespread support from medical societies, public health organizations and the aging community. Similarly, CMS has kept the exclusion on coverage for anti-obesity medications, even though the Biden Administration has asked for ways to address systemic racial inequity and obesity is a throughline to better health outcomes.

To start a dialogue that could lead to meaningful action, the National Consumers League and the National Council on Aging decided to change the dynamic. In September 2022, our organizations sent an urgent letter to CMS Administrator Chiquita Brooks-LaSure requesting a meeting so we could speak to her directly on behalf of  about 18 million traditional Medicare beneficiaries whose diagnosis of obesity puts them at risk of other serious conditions. Our letter was well received and on January 17, this meeting took place.

Recognizing that there has been a “failure to communicate” the urgency of the moment, our purpose was to put a human face on seniors with obesity and to convey that bureaucracy and intransigence cannot be the reason that 18 million older adults are denied effective obesity care. As such, we asked Administrator Brooks-LaSure to end the impasse in Part D coverage of FDA-approved AOMs by making access to obesity treatment an agency priority. This action could be the catalyst empowering CMS staff to think differently about obesity and be more open to interpreting the statutory exclusion provision in a way that would permit coverage for anti-obesity medications.

It is too soon to know what the outcome of the meeting will be. We opened a door and pledged to maintain a frank and constructive dialogue with Administrator Brooks-LaSure and staff she designates on the needs of Medicare beneficiaries living with obesity. Our hope is to elevate obesity as a priority for CMS policy and to work with CMS and other stakeholders to remove the access barriers that keep too many Americans from seeking obesity care.

Guest Blog: Urgent push to get the Senate to pass the Pregnant Workers Fairness Act by end of year

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By Robin Strongin

Pregnancy discrimination in the workplace is real and it’s dangerous.  But, if the Senate acts quickly, it can pass S. 4431, the Pregnant Workers Fairness Act (PWFA) which provides reasonable accommodations for pregnant and postpartum workers.

The legislation, which has already passed in the House, enjoys strong bipartisan support and has garnered wide-ranging support from business associations, the US Chamber of Commerce, labor unions, faith organizations, civil rights organizations, maternal health groups, and others.  The US Conference of Catholic Bishops has stated that “These and other efforts to protect pregnant workers and new mothers should be applauded as they demonstrate a respect for life, family, and the dignity of workers.”

NCL stands with these organizations in urging the Senate to pass the legislation.  Pregnancy discrimination in the workplace is not only medically dangerous, but disruption to a woman’s career hurts her earning power and has implications for the labor supply.  More than 85 percent of women will become mothers at some point in their working lives, the majority of whom cannot afford not to work.

Despite passage of the federal Pregnancy Discrimination Act (PDA) of 1978, employer bias against pregnant women still exists, especially when it comes to employers providing reasonable accommodations to pregnant workers.

In early February 2022, the Bipartisan Policy Center and Morning Consult conducted a survey of 2,200 adults on the prevalence of pregnancy discrimination in the workplace. The survey found that “pregnancy discrimination is common across race, incomes, and other demographics, causing fear about informing employers about a pregnancy and leading many pregnant workers to consider a career change. These trends are particularly elevated among younger women and those who are currently working.”

Key Results:

  • Nearly 1 in 4 (23%) mothers have considered leaving their jobs due to a lack of reasonable accommodations or fear of discrimination from an employer during a pregnancy.
  • 1 in 5 mothers (20%) say they have experienced pregnancy discrimination in the workplace.
  • Adults are witnessing pregnancy discrimination in their workplaces.
  • Over 1 in 5 mothers have been afraid to tell an employer about a pregnancy.
  • A comparable portion of adults report that their partner or spouse has experienced pregnancy discrimination at work.

In their November 10, 2022 letter to the Senate Majority and Minority Leaders, urging swift passage of the Senate bill, the bipartisan members underscored what pregnancy discrimination looks like, and the terrible toll it takes:  …”a warehouse employee in Tennessee who suffered a miscarriage after lifting heavy boxes and being denied light duty; a retail worker in Kansas who was fired because she needed to carry a water bottle to stay hydrated, and a hardware assembler in Ohio who was terminated after her doctor recommended she not lift more than 20 pounds.”

Advocates are raising the alarm: if the Senate doesn’t enact the bill by the end of this year, opposition from Republicans over a lack of religious exemptions could jeopardize the passage of the legislation as Republicans take over the House.

The bill that passed the House did so with a strong bipartisan vote of 315 – 101.  And the Senate bill enjoys strong bipartisanship as well, according to Senate HELP Chair, Patty Murray (D-WASH), who is working across the aisle to get it passed.

If a stand-alone vote in the Senate doesn’t materialize, backers of the bill are considering its inclusion in the year-end spending package. Sen. Bill Cassidy (R-LA) warned, “The clock is ticking… This is a bipartisan bill that’s pro-mothers, pro-healthy pregnancies, and pro-workers,”…”Let’s get it through the Senate by the end of the year.”

Getting more vaccines in arms: Trust and efficiencies

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Guest blog by Farah Towfic, PharmD, MBA, director of the U.S. Pharmacopeia COVID-19 Vaccine Handling Toolkit

In the United States, nearly 200 million doses of influenza vaccines are administered annually. Clearly, pharmacists, nurses, physicians, and other healthcare practitioners have demonstrated a successful track record of delivering robust immunization programs for many years. However, the unprecedented scale and speed at which the COVID-19 vaccinations must be delivered to curb the devastating impact of this pandemic has surfaced enormous challenges—which have been further compounded by significant vaccine supply demand.​ Never before have we had to distribute multiple doses to more than 15 billion individuals around the world, with more than 300 million in the U.S. alone.

The pandemic has also recharged the focus on vaccine hesitancy, a challenging and complex issue which, at its core, is about trust based on a person’s experience and perspective. According to the KFF COVID-19 Vaccine Monitor, a growing share of the public is open to getting vaccinated, but many of the same groups that were hesitant in December 2020, when the first COVID-19 vaccines were released, remain hesitant now. When deciding whether to get vaccinated, most people say they will likely turn to pharmacists, doctors, nurses, and healthcare providers as the source for information. The KFF COVID-19 Vaccine Monitor also notes that 85 percent of people trust their own doctor or healthcare provider at least a fair amount for reliable vaccine information.

If we are going to mitigate the impact of this pandemic, we need to help build and maintain trust in COVID-19 vaccines. As an independent, nonprofit, scientific organization, U.S. Pharmacopeia (USP) has been dedicated—for more than 200 years—to improving global health and building trust in medicine through public standards and related programs that help ensure the quality, safety, and benefit of our drugs. With our shared goals to provide patient access to quality medicines, USP is proud to be a founding member of the National Consumers League (NCL) Health Advisory Council. The Council’s informative communication and opportunities for engagement provide critical perspectives that help shape and inform USP’s strategic focus and initiatives. The Health Advisory Council also demonstrates the power of collaboration—which is a cornerstone of USP’s work.

By working together with stakeholders, partners in industry and the U.S. government, we are able to identify the COVID-19 vaccine operational challenges and also provide solutions. One of these solutions is the recently released USP COVID-19 Vaccine Handling Toolkit, which addresses gaps that slow getting shots in arms and helps healthcare practitioners safely deliver vaccines in a variety of settings.

As millions of additional doses of COVID-19 vaccines are released, the USP COVID-19 Vaccine Handling Toolkit is helping doctors, nurses, pharmacists, and other healthcare practitioners create operational efficiencies to vaccinate more people in their communities quickly and safely, all the while maintaining quality. It includes strategies in three key areas:

  • Preparation and labeling to support different practitioners preparing and administering vaccines including how to maximize the number of doses per vial and enabling pre-drawing of vaccines in advance of large immunization events.
  • Storing, handling, and transporting the vaccine to mass vaccination clinics, nursing and long-term care facilities, and more.
  • Waste prevention and disposal to support settings in preventing vaccine waste and addressing gaps for vaccine administrators in proper disposal of ancillary supplies, such as syringes.

“Using the strategies from the USP Vaccine Handling Toolkit for pre-drawing syringes and streamlining our processes and workflow we increased shots in arms by 50% per day,” says Patricia W. Slattum, Pharm.D., Ph.D., BCGP, a vaccine administrator with the Virginia Medical Reserve Corp and Virginia Commonwealth University.

More than 40 independent expert volunteers along with U.S. government representatives developed this toolkit that enables healthcare practitioners to benefit from consistent, scientific-based strategies developed by independent experts that close efficiency gaps across states and territories.

The USP COVID-19 Vaccine Handling Toolkit is one of several initiatives USP is undertaking to support quality and build trust in COVID-19 vaccines, treatments, and preventatives. For example, our Hand Sanitizer Toolkit, launched in spring 2020, is being used by many around the world to ensure quality preparation of this essential COVID-19 preventative.

As the nation’s pioneer consumer organization, that leads the charge on the importance of adherence to live-savings medicines, NCL plays a pivotal role in helping to build trust in vaccines. USP values the opportunity to share the COVID-19 Vaccine Handling Toolkit with NCL and looks ahead to future opportunities to partner with NCL and other stakeholders in the patient advocacy community.

As more is learned about COVID-19 vaccines, additional information will be shared in the future. We encourage NCL’s readers to sign-up for updates at https://www.usp.org/covid-19/vaccine-handling-toolkit.

About USP
USP is an independent scientific organization that collaborates with the world’s top experts in health and science to develop quality standards for medicines, dietary supplements, and food ingredients. Through our standards, advocacy, and education, USP helps increase the availability of quality medicines, supplements, and food for billions of people worldwide.

Hispanic Heritage Month: Focus on the importance of participating in research through clinical trials

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Hispanic Heritage Month: Focus on the importance of participating in research through clinical trials
by Elena Rios, MD, MSPH, FACP
President & CEO, National Hispanic Medical Association

The COVID-19 pandemic has impacted the world and the United States with a double threat: decreasing health and function of many, especially older patients with underlying diseases (obesity, asthma, diabetes, hypertension, etc.) that decrease the body’s immune response to fight off the virus; and millions left jobless as businesses downsize or close. In the healthcare arena, scientists and physicians are learning about the disease and how to treat it: We now know to limit ventilators to avoid high air pressures that can hurt damaged lungs; to place infected patients on their stomachs to allow lungs to expand; to use dexamethasone to decrease inflammation; and to use new antiviral therapies like Remdesivir and monoclonal antibodies. While there is no vaccine to prevent COVID-19, vaccine developers, researchers, and manufacturers are expediting the development of one.

The National Institutes of Health (NIH) and several pharmaceutical companies are conducting research through clinical trials that have found potential vaccines to be safe. This summer they started to enroll people and closely follow them for any adverse effects. Historically, Hispanics, Blacks, and Native Americans have been underrepresented in clinical trial research for a variety of factors, chief among them, a distrust of research and the concept of fatalism (leaving life’s challenges in God’s hands). But it is crucially important to have diversity in clinical trials to have information on the vaccine impact for Hispanics, for example. I encourage all persons over the age of 18 to enroll in the important COVID-19 clinical trials — and recommend websites for two ongoing clinical trials: the CoronaVirusPreventionNetwork.org from the NIH and Moderna, and the CovidVaccineStudy1.com

from Pfizer Inc. Each site provides consumers with information on the locations and how to enroll.

The National Hispanic Medical Association (NHMA) was established in 1994 to represent trusted Hispanic physicians and to improve the health of Hispanics and underserved populations. Given that, by 2042, one out of four people living in our nation will be Latino, NHMA has joined as a partner to encourage the Latino community to join the NIH All of Us Research Program. In May 2018, the NIH opened national enrollment for the All of Us Research Program—a momentous effort to advance individualized prevention, treatment, and care for people of all backgrounds—in collaboration with NHMA and other national partners. People ages 18 and older who reside in the United States, regardless of health status, are eligible to enroll. The overall aim is to enroll 1 million or more volunteers and to oversample communities that have historically been underrepresented in research to make the program the largest, most diverse resource of its kind. Our participation will provide information on how to better develop health care prevention and treatment programs for generations to come.

Precision medicine is an emerging approach to disease treatment and prevention that considers differences in people’s lifestyles, environments and biological makeup, including genes. By partnering with 1 million diverse people who share information about themselves over a 10-year period, the All of Us Research Program will enable research to more precisely prevent and treat a variety of health conditions.

Participants can access their own health information, including genetics information, summary data about the entire participant community, and information about studies and findings, that come from All of Us. Participants are asked to share different types of health and lifestyle information, through online surveys and electronic health records (EHRs), which will continue to be collected over the course of the program. At different times over the coming months and years, some participants will be asked to visit a local partner site to provide blood and urine samples and to have basic physical measurements taken, such as height and weight, to ensure that the program gathers information fromall types of people. This program is especially focused on those who have been underrepresented in research, but not everyone will be asked to give physical measures and samples. In the future, participants may be invited to share data through wearable devices and to join follow-up research studies, including clinical trials.

In addition, data from the program will be broadly accessible for research purposes. Ultimately, the All of Us Research program will be a rich and open data resource for traditional academic researchers as well as citizen scientists—and everyone in between. To learn more about the program and how to join, please visit https://www.JoinAllofUs.org.

About NHMA

NHMA is a nonprofit association representing the interests of 50,000 Hispanic physicians with the mission to improve the health of Hispanics in the U.S. For more information, please visit www.NHMAmd.org

The impact of COVID-19 on child labor

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By Child Labor Coalition intern Ellie Murphy

Combatting child labor during a global pandemic is a staggering challenge. In countries like Ghana, the Ivory Coast, Bangladesh—and dozens more—school cancellations and lost family income may push children into the labor market. Once in, it may be hard for them to get out and return to school. In the face of this dire emergency, governments, the corporate world, and charitable institutions will need to support vulnerable families during this unprecedented time.

There is a strong correlation between access to education and preventing child labor. “Lack of access to education keeps the cycle of exploitation, illiteracy, and poverty going—limiting future options and forcing children to accept low-wage work as adults and to raise their own children in poverty,” noted the children’s advocacy group, Their World.

With nine in 10 children across the globe prevented from attending school in person, Human Rights Watch notes that interrupting formal education will have a huge impact on children and jeopardize their opportunity for better employment opportunities in the future: “For many children, the COVID-19 crisis will mean limited or no education, or falling further behind their peers.”

Poverty is the single greatest cause of child labor. Because many parents have lost or will lose their jobs, children are facing increased pressure to supplement family incomes. “Children work because their survival and that of their families depend on it, and in many cases because unscrupulous adults take advantage of their vulnerability,” notes the International Labour Organization.

Countries are being impacted by COVID-19 differently, but developing countries are expected to feel more negative consequences than developed countries, according to a report from WorldAtlas.com. Tourism and trade helps fuel many of these economies and the COVID pandemic has devastated both sectors.

Developing countries—primarily in Africa and Asia—already house 90 percent of working children, according to the International Journal of Health Sciences. Economic pressure from the pandemic will likely drive even more children into the workforce.

Before the pandemic, child labor in West Africa was widespread. 2.1 million child laborers were employed by cocoa farms in the Ivory Coast and 900,000 children on cocoa farms in Ghana, according to researchers from Tulane University. Ghana and the Ivory Coast produce about 60 percent of the world’s cocoa—a critical ingredient in chocolate. A recent Voice of America (VOA) article included predications that “there will be increased economic pressures on farming families, and ongoing school closures in Ghana [meaning] children are more likely to accompany their parents to their farms and be exposed to hazardous activities.”

The VOA cited research by the International Cocoa Initiative that analyzed the impacts of income loss on child labor rates in the Ivory Coast and found that a 10 percent drop in income for families in the cocoa industry is expected to produce a 5 percent increase in child labor.

Bangladesh, which had a reported 1.2 million children trapped in the worst forms of child labor in 2015, according to the ILO, is also at risk of seeing child labor increase. Most Bangladeshi workers—87 percent—earn money in the informal economy performing daily labor, unpaid work for their family, or piece-rate work. COVID-19 impacts have left families struggling with a severe drop in income of around 70 percent in many cases. Many adults and children who work making parts of products like garments have seen their income disappear entirely. “Those who depend on daily wages, for example, day labourers, rickshaw pullers, construction workers, street vendors, workers at small informal factories have lost their incomes with the hit of the pandemic,” noted researchers with the Institute for Development Studies. With this dramatic loss of income, it is expected that families will turn to their children to earn more money to buy basic necessities for survival.

In an effort to combat the potential increase in child labor, human rights organizations have urged governments to support families during this crisis—including the use of cash transfer programs. This entails direct cash payments to destitute families. Sometimes there are strings attached to the payments. Families that accept the money must promise to keep children in school and not allow them to enter the labor market. Cash transfers, often involving small amounts of money, have proven effective, in varying degrees, in reducing child labor in many countries.

In the COVID-19 pandemic, even small amounts of money might prevent starvation—or keep children out of the labor market. Save the Children argues that cash transfers help reduce the rate of child mortality, increase access to education, and reduce child abuse. Researchers Jacobus DeHoop and Eric Edmonds recently noted that 133 countries were working on social protection responses that provide financial support to vulnerable families in an effort to combat an increase in child labor during this time. Human Rights Watch has a series of recommendations for governments, including cash transfer payments.

Government efforts alone may not be enough. Companies that employ vulnerable demographics must also respond. Verité, an organization that works to eliminate abusive labor and empower workers, issued a series of recommendations to help companies address COVID impacts. Among the recommendations was a call for companies that work in areas with high rates of child labor to monitor “hot spots” for exploitation and intervene when necessary. Additionally, Verite urged companies to provide benefits for families who experience a loss of a parent due to the pandemic, make work remote when possible, and provide longer sick leaves for employees.

The COVID-19 crisis calls for innovative efforts to protect vulnerable families and children. As Jo Becker, the children’s rights advocacy director at Human Rights Watch, notes “the choices governments make now are crucial, not only to mitigate the worst harm of the pandemic, but also to benefit children over the long term.” By providing families with desperately needed resources during this unprecedented time, it may be possible to help curtail the increase of child labor worldwide.

In the last two decades, the world has seen the number of child laborers drop by nearly 100 million. “We do not want to see those hard-won gains reversed,” said Reid Maki, director of child labor advocacy for the National Consumers League and the coordinator of the Child Labor Coalition. “Concerted and robust action is required.” The actions that those in power take today will have long-lasting impacts that go far beyond COVID-19.

Ellie Murphy is a rising junior at Tufts University, majoring in International Relations and Sociology.

Lessons from pandemic life: we all need the option of paper notice

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Jim Haigh leads education and development efforts at Keep Me Posted North America, an advocacy organization focused on the mission of consumer choice in essential communications.

It was only last year that a whopping 86 percent of U.S. consumers expressed the desire of having a choice for how they receive important information from the companies they do business with. For critical correspondence such as bills and statements, the overwhelming majority want the option of paper or electronic delivery, and the ability to control their preferences.

But as consumers trapped in the digital divide have pleaded for communications choices and relief from punishing paper fees, more and more companies have prioritized digital-first approaches to conducting business including how they send legal notice of account, tacking on new charges along the way. It might have been easy for some demographics and geographic regions to overlook this important issue, having taken for granted the luxury, convenience and complacency of a digital world where everything always just works amazing in a click. 

But the calamities we are all seeing and experiencing—as new realities unfold have changed all of that. With government and company websites crashing, servers overloading, networks slowing, transactions halted, records quarantined, Americans—and the world—are waking up daily to a new appreciation of the need to have paper options. Failsafe analog backups, like physical bank records or medical histories, become a necessity as untold millions try to apply for emergency aid and assistance, complete their tax filings or take care of their health. Or cast their vote and complete the Census.

The digital divide has always been here, but too often hiding in plain sight. As schools across the country attempted to roll out remote learning, the widespread lack of access to affordable connectivity spanned from rural to urban to everywhere in between. The same widespread gaps true of home computers, tablets, and devices able to run the latest applications or function across important websites. The nation watched as people stood unsafely in lines to get paper forms because digital options foreclosed. With stores closed or stay-at-home ordered to populations, suddenly even basic supplies overlooked like ink, toner, batteries for devices and broken devices waiting for repair, all combine to give everyone an unwelcome taste of the great digital divide we all share.

Now that so many of us are on the same page, it’s a perfect time to highlight the efforts of the Keep Me Posted North America campaign to restore and sustain consumers’ choice in how they receive important information—on paper or electronically—from their service providers. National Consumers League is an active member of the non-profit KMP coalition of consumer groups, charities and businesses, and champions their mission and efforts to ensure that every consumer in North America has the option of both paper and digital communications—free of charge—from the companies they routinely do business with.

KMP’s advocacy, resources, and tools are crucial for all consumers to have the facts and a strong, united voice. It is up to all of us to build grassroots support and influence service providers directly. Together, we are making a difference.

Please join with KMP in urging banks, utilities, telecommunications, and all recurring service providers to take action proactively to benefit customers now during the pandemic and beyond by adopting the Keep Me Posted Best Practices for communications choice in essential customer communications. Together we ask that they fully treat bills and statements as true notice of account. In so doing, they will transparently provide a range of paper and digital options, honor preferences, seek consent for changes, and pose no barriers for customers needing to switch back or forth from digital to paper notice—without any additional fees charged for either form of delivery. 

Let’s all help companies understand the bargain: for less than seventy cents per account per month, customers will have the unfettered access to all the account information they need, how they need it, in whatever form they need it at their moment in this crisis we all share in together. And furthermore, empowering consumers with that flexibility of seamless access and delivery of paper and electronic account information will probably pay dividends as a sound investment—in customer retention, and measurable savings in customer service down the road.

About Keep Me Posted North America

Keep Me Posted advocates for the right of every consumer in North America to choose, free of charge, how they receive important information—on paper or electronically—from their service providers. KMP is a coalition of consumer groups, charities, and businesses that are committed to protecting consumer access to paper-based communications at no extra charge. These consumers include older adults, the disabled, low-income households without computers, printers or broadband service, and people in rural areas where unreliable internet access is common.

For more information on how to support KMP or to become a member, visit our website at keepmepostedna.org, or follow us on Twitter, Facebook, or LinkedIn.

 

Protecting information privacy: challenges and opportunities in federal legislation

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Polly Turner-Ward

By NCL Google Public Policy Fellow Pollyanna Turner-Ward

On September 11, 2019, policymakers, industry stakeholders, and consumer advocates gathered at The Brookings Institution to discuss the pressing question of how to protect information privacy through federal legislation. Representing the National Consumers League was Executive Director, Sally Greenberg.

How did we get here?

To set the scene, panelists first discussed why there is consensus on the need for federal legislation to address privacy and data security. The Snowden revelations showed consumers how much of their data is out there, and they began to question whether companies could be trusted to keep their data safe from the government. More recently, in light of the Cambridge Analytica scandal and increasing instances of identity theft and fraud resulting from data breaches, consumers have begun to question whether companies themselves can be trusted with their data.

Businesses are worried about lack of consumer trust interfering with their adoption of digital products and services. For instance, parental refusal to provide consent to the collection and use of data regarding their kid’s academic performance prevents the personalization of their children’s learning experience. By providing individuals with greater privacy protections, businesses hope that individual participation in the digital economy will increase.

In response to consumer privacy concerns, a patchwork of state bills on privacy and data security are also popping up. Business claims to be overwhelmed by the idea of complying with these differing regulatory schemes, especially in light of the EU’s General Data Protection Regulation (GDPR), which has already moved many organizations to comply with privacy and data security rules. To support businesses and to regain U.S. privacy leadership, greater international operability is necessary.

What should federal legislation look like?

Each panelist set forth their idea of what federal legislation should aim to achieve. Intel drafted a privacy bill which includes various protections but which lacks a private right of action – that is, the ability to take wrongdoers to court if they violate privacy laws. If companies promise not to use your information in certain ways and then do it anyway, in violation of law, you should have the right to take them to court. NCL’s Sally Greenberg directed audience members towards the Public Interest Privacy Principles signed by thirty-four consumer advocacy and civil rights organizations. Advocating in favor of strong protections, strong enforcement, and preemption, and highlighting the importance of “baking data privacy into products and services”, she offered NCL’s vision of a strong, agile and adaptive national standard.

Panelists drew comparisons between this approach and that of the EU’s GDPR, but criticized the time-consuming and resource intensive nature of that legislation. They agreed that U.S. legislation should avoid being too prescriptive in the details. Rather than requiring documentation of policies, practices, and data flow maps, legislation should focus on high-level issues.

Breaking down these issues according to consensus and complexity, Cameron F. Kelly listed covered information, de-identification, data security, state enforcement, accountability, and FTC authority as solvable issues. Implementation issues, he said, include notice and transparency and individual rights (access, portability, right to object to processing, deletion, nondiscrimination). However, Mr. Kelly noted that disagreement clouds a number of complex issues. These relate to algorithmic transparency, algorithmic fairness, and data processing limitations (use restrictions). Until consensus is reached in these areas, disagreements about preemption and private right of action are unlikely to be resolvable.

Notice and Transparency 

While notice and transparency are important aspects of a comprehensive approach towards privacy and data security, it is difficult for consumers to process the volume of information contained in privacy policies. Consumers also often have little choice but to “agree” to services that are essential to everyday life. As such, legislators may wish to explore the extent to which a company may force an individual to waive their privacy rights as a condition of service. Consent should only have a limited role in relation to sensitive data uses, and companies should focus on designing user interfaces to enable meaningful consumer consent. Panelists criticized the California Consumer Protection Act (CCPA) for its lack of detail and for putting the burden on individuals to protect themselves. It was agreed that federal standards should move beyond notice-and-consent and put the burden back on businesses.

De-identification 

One panelist called de-identification the “secret sauce” to privacy. Preserving the utility of data while removing identification puts the focus on data processing harms. It is important to get de-identification right for valuable research purposes. However, de-identification is often not done well and confusion lurks around pseudonymization. This technique involves replacing personally identifiable information fields within a data record with artificial identifiers. As data remains identifiable using that technique, data security and privacy risks remain. Companies must be incentivized to effectively de-identify data, to not re-identify, and to contractually restrict downstream users from doing the same. To avoid conflating data security levels with pseudonymization levels, a universal and adaptable de-identification standard must be developed.

Data security 

Because data security is critical to privacy, panelists agreed that it is the foundation upon which privacy legislation should be built. Panelists warned against an overly prescriptive approach towards data security but suggested that the Federal Trade Commission (FTC) should offer more guidance. “Reasonable” data security depends upon the nature and scope of data collection and use. This affords organizations flexibility when adopting measures that make sense in terms of information sensitivity, context, and risk of harm.

However, determining data security standards according to the risk of privacy harm is difficult because “risk of privacy harm” is an unsettled and controversial concept. It was also debated whether “information sensitivity” should be used to determine the reasonableness of data security standards. Public Knowledge argued that all data should be protected in the same way because the distinction between sensitive and non-sensitive data is increasingly questionable. When data is aggregated and sophisticated technologies such as machine learning are applied, each and every data point can lead back to an identifiable person.

While use of off-the-shelf software should generally be considered reasonable, higher standards should apply to companies that are more aggressive in their data collection and use. Extending to third party processors and service providers, organizations must continually develop physical, technical, and legal safeguards. To ensure robust infrastructure to secure their data, they should run tests, impact assessments, and put resources towards data mapping.

Data processing limitations

In sectors ranging from education to healthcare, the use of data undoubtedly has the potential to help us solve many societal problems. However, data use is pervasive, and new and unpredictably bad outcomes are also possible. Consumers want data to be used in ways that benefit them, for data not to be used in ways that harm them, and for their data to be protected. However, information collection and sharing is largely unbounded. If Congress wishes to move beyond a notice-and-consent model and put the burden back on organizations that handle data, then the boundaries of how data should be collected, retained, used, and shared must be confronted. Without limitations, the high value of data will continue to incentivize organizations to collect and retain data for the sake of it. These practices increase cybersecurity and privacy risks on unforeseen levels.

Calling out data brokers, Intel’s David Hoffman stated that databases containing lists of rape victims are simply “unacceptable.” However, transfer restrictions are likely to be one of the hardest areas to reach consensus on. Use restrictions, which relate to what organizations can and cannot do with data at a granular level, may be approached by creating presumptively allowed and presumptively prohibited lists. Use and sharing could be presumptively allowed for responsible advertising, legal process and compliance, data security and safety, authentication, product recalls, research purposes, and the fulfillment of product and service requests. Meanwhile, use of data for eligibility determinations, committing fraud or stalking, or for unreasonable practices could be presumptively prohibited.

However, it is difficult to determine the standards by which a particular data use should be “green-lighted” or “red-lighted.” To determine if a data use is for a purpose related to that which a user originally shared data, factors may be considered such as whether the use is primary or secondary, how far down the chain of vendors processing occurs, and whether the processor has a direct or indirect relationship with the data subject. The FTC has done work to articulate “unreasonable” data processing and sharing, and the Center for Democracy and Technology’s Consumer Bill of Rights emphasizes respect for context (user expectations) by laying out applicable factors such as consumer privacy risk and information sensitivity.

However, “context” is difficult to operationalize. One option may be to grant the FTC rulemaking authority to determine issues such as which data uses are per se unfair, or which information is sensitive. The deception and unfairness standard has guided the FTC for decades. However, panelists were concerned about giving the FTC a blank check to use the abusiveness standard to deal with data abuses. Instead, the FTC could be given a clear set of instructions in the form of FTC guidance, legislative preamble, or written in detail in the legislation. If this approach is taken, it would be necessary to confront the difficult question of what harm legislation should seek to address. Because privacy injury is not clear or quantifiable, it is difficult to agree on the appropriate harm standard. A specific list of the types of injury – not an exhaustive list – resulting from data processing would give the harm standard substance, and algorithmic data processing ought to be directly confronted.

Because the purpose of data analysis is to draw differences and to make distinctions, the privacy debate cannot be separated from the discrimination debate. Intent to engage in prohibited discrimination is difficult to prove, especially with use of proxies. For instance, rather than directly using a protected characteristic such as racial heritage as a proxy to offer payday loans, an algorithm could use zip code or music taste as a proxy for race in order to decide who to advertise payday loans to. To provide clarity and to promote algorithmic fairness, existing discrimination laws could be augmented with privacy legislation by defining unfair discrimination according to disparate impact on protected classes (disadvantaged groups). Privacy legislation should ensure that data use does not contribute to prohibited discrimination by requiring risk assessments and outcome monitoring.

To increase consumer trust and to provide them with recourse when they suspect that they are the victims of unfair discrimination, legislation should directly confront algorithmic transparency and burden of proof. Consumers cannot be expected to understand the mechanisms that determine what advertisements they are presented with or how automatic decisions are made about them. However, organizations should not be able to escape liability by claiming that they do not have access to the data or algorithm necessary to prove discrimination claims.

Enforcement

Panelists agreed that State Attorney Generals need to be able to enforce the law and that the FTC requires increased resources and enforcement powers. As Congress cannot anticipate every possible scenario, it is appropriate to give the FTC narrow rulemaking authority, the authority to fine for first offences, to be able to approve codes of conduct, and to clarify guidance on how to comply with the law on issues such as de-identification. The FTC needs vastly more resources to be able to accomplish this oversight and enforcement role. The jury is out as to whether Congress will pony up.

Sally Greenberg described the importance of also including an option for private parties to bring class-action suits. However, there was disagreement between panelists about whether individuals should be able to privately enforce their rights where the government lacks the resources or will to act. David Hoffman highlighted evidentiary problems associated with the difficulty in proving privacy harms. To better serve the public, he argued in favor of the creation of a uniform standard with strong protections.

Preemption of state laws 

The objective of creating a consistent federal standard was emphasized as a key driving factor for industry for the creation of a federal bill. Not including preemption of state law is a kind of “deal-breaker” for industry. They claim that complying with a patchwork of fifty different data breach notification standards is hard today. It was suggested that states could be given a window of five years with no preemption to allow them to adapt and innovate, after which time the situation could be reviewed. Or the reverse – preempt for five years and sunset the federal law. These suggestions both have merit, but in the end, answering the questions of preemption and private right of action remain to be seen.

Developing an approach towards consumer privacy and data security

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Polly Turner-Ward

By NCL Google Public Policy Fellow Pollyanna Sanderson

This blog post is the first of a series of blogs offering a consumer perspective on developing an approach towards consumer privacy and data security.

For more than 20 years, Congressional inaction on privacy and data security has coincided with increased data breaches impacting millions of consumers. In the absence of Congressional action, states and the executive branch have increasingly stepped in. A key part of the White House’s response is the National Telecommunication and Information Administration (NTIA) September Request for Comment (RFC).

While a “Request for Comment” sounds incredibly wonky, it is a key part of the process that informs the government’s approach to consumer privacy. The NTIA’s process gathers input from interested stakeholders on ways to advance consumer privacy while protecting prosperity and innovation. Stakeholder responses provide a glimpse into where consensus and disagreements lie among consumer and industry players on key issues. We have read through the comments and in this series of blogs are pleased to offer a consumer perspective.

This first blog focuses on a fundamental aspect of any proposed approach to privacy and data security: the scope. Reflecting risks of big data classification and predictive analytics, one suggestion by the Center for Digital Democracy (CDD) was to frame the issues according to data processing outputs. This would cover inferences, decisions, and other data uses that undermine individual control and privacy. However, focusing on data inputs, there was consensus among many interested stakeholders that privacy legislation must cover “personal information.”

The Center for Democracy and Technology noted that personal information is an evolving concept, the scope of which is “unsettled…as a matter of law, policy, and technology.” Various legal definitions exist at the state, federal, and international level. The Federal Trade Commission’s (FTC) 2012 definition defines it as information capable of being associated with or reasonably linked or linkable to a consumer, household, or device. Subject to certain conditions, de-identified information is excluded from this definition. To help to address privacy concerns while enabling collection and use, many stakeholders agree that regulatory relief should be provided for effective de-identification techniques. This would incentivize the development and implementation of privacy-enhancing techniques and de-identification technologies such as differential privacy and encryption. Federal law to avoid classifying covered data in a binary way as personal or non-personal. An all-or-nothing approach requiring irreversible de-identification is a difficult or impossible standard.

In an attempt to recognize that identifiability rests on a spectrum, the EU’s General Data Protection Regulation (GDPR) excludes anonymized information and introduces the concept of pseudonymized data. These concepts demand federal consideration, having been introduced to United States law via the California Consumer Protection Act (CCPA). The law should clarify how it applies to aggregated, de-identified, pseudonymous, identifiable, and identified information. To be considered de-identified data subject to lower standards, data must not be linkable to an individual, risk of re-identification must be minimal, the entity must publicly commit not to attempt to re-identify the data, and effective legal, administrative, technical, and/or contractual controls must be applied to safeguard that commitment.

While de-identified and other anonymized data may be subject to lower privacy standards, they should not be removed from protection altogether. In their NTIA comment, the CDD highlights that third-party personal data, anonymized data, and other forms of non-personal data may be used to make sensitive inferences and to develop profiles. These could be used for purposes ranging from persuading voters to targeting advertisements. However, individual privacy rights may only be exercised after inferences or profiles have been applied at the individual level. Because profiles and inferences can be made without identifiability, this aspect of corporate data practice would therefore largely escape accountability if de-identified and other anonymized data were not subject to standards of some kind.

This loophole must be closed. Personal information should be broadly defined to address risks of re-identification and to capture evolving business practices that undermine privacy. While the GDPR does not include inferred information in its definition of personal information, inspiration could be taken from the definition of personal information given by the CCPA, which includes inferred information drawn from personal information and used to create consumer profiles.

Our next blog  will explore “developing an approach for handling privacy risks and harms.” In its request for comment, the NTIA established a risk and outcome-based approach towards consumer privacy as a high-level goal for federal action. However, within industry and society, there is a lack of consensus about what constitutes a privacy risk. Stay tuned for a deep dive into the key issues that arise.

The author completed her undergraduate degree in law at Queen Mary University of London and her Master of Laws at William & Mary. She has focused her career on privacy and data security.