Preposterous ‘preponderance’

While left hand says it’s busy building ‘mountain’ of evidence, right hand has already moved the nutrition definition goal post

By Sherry Bunting, Farmshine, Dec. 23, 2020

BROWNSTOWN, Pa. — Preponderance of the evidence. We hear that phrase over and over when it comes to the Dietary Guidelines for Americans (DGAs) and the effort to reverse 40 years of increasingly strict rules on dietary fat affecting children in schools and daycares, the military, seniors in nursing care or retirement villages, food-insecure families relying on government feeding programs like WIC, and countless other insidious prohibitions on healthy choices when it comes to whole milk, butter, full-fat cheese, dairy products like sour cream and cream cheese as well as other animal protein foods containing fat.

But the whole concept of ‘preponderance’ is really preposterous when applying the legal definition.

Let’s review.

Last March at a DMI forum on a Chester County dairy farm, DMI chair Marilyn Hershey and executive vice president Lucas Lentsch described the ‘preponderance of evidence’ standard as “building a mountain of evidence.” They said the National Dairy Council is building that mountain, but it takes time to keep pushing more evidence forward “until we have enough.”

When former Ag Secretary Tom Vilsack gave the 2015-20 Dietary Guidelines his stamp of approval, a Congressional hearing took the USDA and HHS secretaries to task, grilling them on science that was not considered then (nor is it now in the 2020 version of the DGAs). Remember, former Ag Sec. Vilsack promptly became the current top-paid dairy checkoff executive for four years (Jan. 2017 to present) and is now poised (again) as President-Elect Biden’s Ag Secretary pick 2021 forward.

During that 2015 congressional grilling, then Secretary Vilsack said “It’s the preponderance of the evidence that is the standard, and we know stuff is always changing so there has to be a cutoff.”

On whole milk (which he helped remove from schools in 2010), then Secretary Vilsack, when confronted in 2015 with what he called “emerging” science on saturated fat — said “the preponderance of evidence still favors the recommendation for fat-free and low-fat dairy.”

Much of the saturated fat discussion during the 2020 DGA Committee work used the 2015 DGA’s body of science, that was one of the screening criteria. The cutoff bar didn’t move.

In 2015, then Secretary Vilsack explained the ‘science’ of the DGAs this way:

“Well, the process starts with a series of questions that are formulated and then information is accumulated and it goes through a process of evaluation,” he said.

Answering a charge by then Congressman Benishek, a physician from Michigan who was concerned about the 52% of Americans who are diabetic, pre-diabetic and carbohydrate intolerant as regards the fat caps and the exclusion of science available — even in 2015 — on low carb, higher fat diets, then Sec. Vilsack stated in 2015:

“The review process goes through a series of mechanisms to try to provide an understanding of what the best science is, what the best available science is and what the least biased science is, and it’s a series of things: the Cochrane Collaboration, the Academy of Nutrition and Dietetics, the aging for health care equality, data quality, all part of the Data Quality Act (2001 under Clinton Admin). That’s another parameter that we have to work under, Congress has given us direction under the Data Quality Act as to how this is to be managed.”

On a further point of contention in 2015, Vilsack stated the following as a definition of how “preponderance” works.

Vilsack said (2015): “In some circumstances, you have competing studies, which is why it’s important to understand that this is really about well-informed opinion. I wish there were scientific facts. But the reality is stuff changes. The key here is taking a look at the preponderance. The greater weight of the evidence. If you have one study on one side and you have 15 on another side, the evidence may be on this side with the 15 studies. That’s a challenge. That’s why we do this every five years to give an opportunity for that quality study to be further enhanced so that five years from now maybe there are 15 studies on this side and 15 studies on this side. It’s an evolving process.”

During a recent dairy checkoff yearend news conference with reporters, DMI CEO Tom Gallagher answered a question about consumer health attitudes and checkoff research targets for 2021. Whole milk was never mentioned in the question, but here is Gallagher’s answer as he, too, cites the “preponderance” criteria:

Gallagher said (2020): “Our research plan (for 2021) is very robust at our centers. The primary research that we focus on is whole milk because we are, number one, the only group to be pushing the research on whole milk and taking it to the scientific community so the scientific community does more research because the Dietary Guidelines will never change until the preponderance – not the best – evidence, but the preponderance of the research is in favor of whole milk. We’re helping to move that needle to that point.”

I looked up the legal definition of this ‘preponderance of the evidence’ phrase, this standard for the DGAs as determined by Congressional statute. It is clear that DMI’s assertion of building a mountain of evidence is not needed to achieve a preponderance, according to the legal definition.

According to the law.com legal dictionary, ‘preponderance of the evidence’ is a lower burden of proof than other evidentiary burdens. It only requires a better than 50% chance that it’s true! 

In fact, the law.com definition states “Preponderance of the evidence is based on what is the more convincing evidence and its probable truth or accuracy NOT on the amount of evidence.” An example is given where one credible witness outweighs a pile of other evidence! It’s not the amount of research, then, it is the more convincing in terms of probable truth.

The word preponderance itself means “quality or fact of being greater in number, quantity, OR importance.” Yes, importance and quality can trump quantity to achieve preponderance!

Mountain-building is a stalling tactic by the left hand of industry and government, while their combined right hand is moving the goal post. (In fact, mountain-building is futile because the USDA structure on Dietary Guidelines has not allowed new evidence to be considered on certain dietary fiction it deems as settled science. There are fancy ‘mechanisms’ that have kept credible science out of the equation in 2015 and again in 2020).

Who are the attorneys advising USDA and dairy checkoff as to the meaning of “preponderance of the evidence?” Could it be Mr. Vilsack, an attorney by trade, going from USDA Secretary to top-paid DMI executive and back again potentially as the next Ag Secretary? 

Clearly, Mr. Vilsack and his colleagues at DMI are fond of citing “preponderance” as a stalling tactic for fat flexibility in the DGAs. But contrary to Gallagher’s point during this yearend news conference, the legal definition of “preponderance of evidence,” really does mean the BEST evidence can trump the MOST evidence.

It’s not about which theory has the most evidence, but which one has the best and most convincing evidence. This definition suggests that you don’t need 15 studies on one side to match 15 studies on the other side. To add flexibility on school milk choice or to reverse the saturated fat caps set at 10% of calories, a mountain of evidence is NOT needed, and a lot of good and convincing evidence keeps getting excluded from the process anyway.

The saturated fat question and the casting aside of research feels like being forced to doggy paddle in an olympic swimming competition.

The problem is agenda and bias. Who is standing up for producers and consumers?

Ahead of the 2015 DGA cycle, scientists and investigative journalists, like Nina Teicholz, exposed the weak scientific basis for Dr. Ancel Keys’ diet-heart hypothesis that these DGAs have been built on for over 40 years. Not to mention the many studies back then that were buried, once Keys became the dietary darling, and not to mention all of the newer studies that show saturated fat is not the health demon it has been made out to be, and in fact is necessary in diets to prevent chronic diet-related illness.

Here’s a look at where nutrition science is going next.

Yes, they have moved the goal post via climate change. And yes, they are telling us that consumers are more concerned about climate change after Covid-19.

Basing DMI’s 2021 plan assertions on a Kearney report (April 2020), Gallagher said: “Covid-19 has made people more hyper-sensitive to things, like the environment. 58% of consumers are more concerned about the environment since Covid, and 50% want companies to respond to climate change with the same level of urgency as responding to the pandemic.”

When asked where consumers ranked health in that particular survey — given a recent report on CNBC business news about corporations trying to get consumer ‘buy-in’ on sustainability benchmarks and finding the only way to achieve it is to link sustainability to health.

You guessed it. Gallagher was ready with the answer.

“Sustainable nutrition is the phrase you’re going to hear going forward. You’re going to see those two things inextricably tied,” he replied during the yearend and look ahead news conference by phone.

We recall in October 2019, Gallagher telegraphed a message during the 53rd World Dairy Expo that the dairy checkoff simply accepts waiting another five years until 2025 (not the current cycle) as the year that the saturated fat caps could be reversed. The 2020 DGA committee was only just partway into the process back in Oct. 2019 with a whole year of work ahead — and already the head of dairy checkoff was being quoted in the Oct. 14, 2019 Hoard’s article broadcasting that the fat issue could likely happen by the NEXT DGA cycle (2025), not this one (2020).

Gallagher further indicated in that Oct. 2019 Hoards article that the “forest” must be “populated with more trees.” (Again this idea that preponderance is based on the amount of studies, not the importance or reliability of the studies and not acknowledging that half the trees in that so-called forest are being ignored by USDA and the DGA committee — screened out of consideration at the outset. Not one of the checkoff or ag commodity group was standing up for producers and consumers on this score at the START of the 2020 DGA cycle, nor the finish).

However, we now know that the new goal post will be entrenched by 2025: ‘Sustainable nutrition’ will be the new phrase, the new goal post, according to Gallagher’s response during the December 2020 news conference.

Make no mistake about this: As much as the sustainability overlords talk about farmers being paid to plant cover crops (most already plant cover crops after corn harvest) or to recover nutrients and methane through other practices and technologies, paying for offsets and dilution of animal foods in diets are two strategies already on deck. We heard a little of this also during the December 2020 news conference as Gallagher and DMI president Barb O’Brien talked about how their partners are getting into ‘competitors’ (fake dairy lookalikes) because when a family of four comes in to eat, one may want a new taste experience, and DMI partners have to provide that ‘new experience’ to keep from losing the entire family.

DMI is working for its corporate partners like Nestle and Starbucks, both giving the DMI Innovation Center’s Net Zero Initiative up to $10 million over multiple years to pilot sustainable technologies and practices on dairy farms.

Gallagher described the situation this way: “Health, taste, price – those things are still important, but as more and more companies are offering things that are competitive, what we’re seeing people saying is ‘Well, I’m going to look at sustainability as a difference maker in who I purchase from and what I purchase,’” he said.

“The days of 10 to 15 years ago — where things like sustainability were believed to be made up by retailers for marketing — are over,” Gallagher added.

“Everyone gets it. We are past that. The beautiful part is the U.S. dairy industry has the best sustainability story in the world to tell, and we’re telling it,” he said.

As promised, a follow up email provided more details on Gallagher’s whole milk research assertion, stating: “Dairy farmers have been funding research led by National Dairy Council on the role of whole milk dairy foods and wellness for over a decade. In fact, around 70 studies have been published, adding to the growing body of evidence indicating that consuming dairy foods, regardless of fat content, as part of healthy eating patterns is not linked with risk of heart disease or type 2 diabetes. The paradigm shift to more fat flexibility in the dairy group is already happening in the real world as demonstrated through the many actions of consumers and thought leaders.”

Three research items were specifically mentioned in the email — all published within the past 6 to 24 months:

1) A Science Brief: Whole and reduced-fat dairy foods and cardiovascular disease. Upon following the link published January 17, 2019, we find it begins as a regurgitation of 2015-20 Dietary Guidelines with all references to dairy qualified as ‘low-fat and fat-free’, but then goes on to discuss: “Emerging research also indicates that saturated fat intake on its own may be a poor metric for identifying healthy foods or diets.” A downloadable PDF summarizes this “emerging” research on dairy fat at: Science Brief: Whole and Reduced-Fat Dairy Foods and CVD | U.S. Dairy

2) Posted in Sept. 2019 is this resource where National Dairy Council’s Dr. Greg Miller talks about “landmark shifts” and states that, “As the research continues to grow, a preponderance of evidence (exists linking milk, cheese and yogurt, regardless of fat level, with lower risk of chronic diseases like type 2 diabetes and cardiovascular disease. This one is found at: Ask Dr. Dairy: Can Whole Milk-Based Dairy Foods Be Part of Healthy Eating Patterns? | U.S. Dairy

3) The third item posted June 2020 in connection with DMI’s Dietary Guidelines comment talks about dairy consumption lowering risk of high blood pressure and diabetes and cites a study that, “indicates there may be room for fat flexibility in peoples’ dairy group choices to include dairy foods like milk, cheese and yogurt – at a variety of fat levels – as part of healthy eating patterns in the U.S. and worldwide.”

We can see the tight rope being walked, hinging everything on this idea of slowly building a mountain of evidence as though this is the definition of what is needed to fulfill the “preponderance” standard. But as we know from the legal definition, the amount of evidence is not what’s important, but rather what is credible and convincing. The available evidence is already preponderant. Whole milk, at 41% of market share, has grown by leaps and bounds over the past two years, and is now the largest selling product in the milk category because consumers are convinced. In the past two years, they have moved toward choosing health instead of allowing the government to choose for them — at least when they CAN choose.

Thinking on the many topics that were part of the fairy checkoff yearend news conference, some clear themes take us into the new year in terms of the 2021 dairy checkoff plans.

Gallagher, O’Brien and Hershey talked about “moving milk” differently because of Covid, of working in Emergency Action Teams to unify the supply chain with these top priorities in mind: 

1) Feeding food insecure people, 

2) Responding to climate change

3) Developing a deeper and closer relationship with Amazon into e-commerce and milk portability, and 

4) Developing tools and promotions for corporate partners.

On the latter, Gallagher was proud to give the example of DMI’s funding for Domino’s “contactless delivery” in Japan during the early days of Covid. He said this partner (named as Leprino, DFA and Domino’s) would not have been in a position to move so much pizza cheese when the pandemic hit the U.S. had it not been for DMI’s funding of that contactless delivery innovation first in Japan and then used here.

(Contactless delivery is used by almost every restaurant doing takeout today in the Covid era. It simply means ordering and paying online, texting when arriving, and having your food placed in your car. Not rocket science.)

Since 2008, DMI and USDA — through Vilsack-era Memorandums of Understanding — have a hand-in-glove relationship on GENYOUth and Sustainability. DMI works for its partners and has adopted a role for itself as global supply-chain integrator — the prime mover of milk.

Increasingly, there is the sense that the dairy checkoff bus has morphed into a ride for its key partners, while rank-and-file producers keep paying the fare, just hoping for a lift.

Look for more yearend checkoff review in a future edition of Farmshine.

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