The information packet started a lively debate inside the department: should they mandate restricted use of trans fat by restaurants, or ask for voluntary efforts? Silver favored a legal mandate. Before coming to the Department of Health and Mental Hygiene, she had spent 20 years working and teaching on food and drug regulation, amongst other issues. She had worked as a consultant to the World Health Organization, and at the Karolinska Institute in Sweden. Her experience led her to think that restaurants would not voluntarily give up using trans fat. In her first months at the Department of Health, for example, she had tried in vain to persuade McDonald’s—at least in New York City—to make fast food healthier by making portions smaller or creating better children’s meals. She notes:

It’s hard to get people to invest time and money and attention to making changes that they don’t necessarily see the need for, in relation to their business. Most people think that combating heart disease is a doctor’s job, not a cook’s. It’s not that they’re bad or lazy, it’s that they’re busy bakers and cooks, and in the food business, they’re worried about making food that tastes good and that people want to buy as opposed to health. ^[19]

Silver had been impressed by an informal introduction to public health law she attended when she started at the department in 2004. “Wilfredo Lopez, who was one of our general counsel, gave us what he used to call Public Health Law 101, where he would introduce the new staff to our public health law framework,” she says. As part of the session, Lopez talked about the department’s authority over food service establishments. At the time, the department was in the process of revising New York City health codes, and Commissioner Frieden asked Silver which codes the city should have on the books for chronic diseases. “Mostly, the initial concern was about cleaning up old archaic chapters,” says Silver.

I was much more interested in saying, “How can we use health law to prevent chronic disease?” which was not a traditional application of our legal framework. Our legal framework had been much more used to address infectious disease, particularly in the food-borne setting.

Silver realized that, in theory, the department had the legal authority to require restaurants to restrict trans fat. But such regulation, she knew, would be very controversial. “Food safety authority in the United States has not really been used to address non-communicable disease. [But] we thought that this was an essential way for food safety to move and to address the problems of the 21 ^st century,” says Silver.

Silver’s cardiovascular staff, Angell and Goldstein, favored a voluntary approach, combined with a public education campaign. “[The American Heart Association] actually did an Internet-based survey of consumers to understand what they knew about trans fat. And they found fairly low knowledge about trans fat,” says Goldstein.

People had heard of it, they knew it was bad, but they didn’t know what it was in. As I was starting to talk to people, I realized, people don’t even know what this stuff is. How can you restrict it if you don’t even know where it is or what it is and why? It just seemed like we needed to educate people first.

Over the first few months of 2005, “we had a lot of internal discussion with Commissioner Frieden, Sonia [Angell], myself, our general counsel, Elliot Marcus and Robert Edman who led our food safety team,” recalls Silver. The food safety staff specifically questioned the department’s capacity to monitor restaurants, as well as the associated costs. Silver recalls:

Our food safety folks were actually very skeptical that restaurants would change unless it was regulated. They were also hesitant to use their regulatory authority to that end and they were concerned about the burden on the inspectors who were already overloaded, to have to enforce these types of things, and the financial burden. Anything you add to the law that people have to enforce [means] additional time and energy, and that’s a legitimate concern, because they still had to watch out for E. Coli and all those other things, like rats and cockroaches.

By April, Commissioner Frieden decided that it was best to try voluntary efforts first. The team decided to design a program to educate the public on the dangers of trans fat, and simultaneously persuade restaurants to restrict its use on a voluntary basis. “By that time, I agreed with the voluntary campaign; it felt like it was a reasonable way to do it. With the plan, we would reassess progress [after a year], evaluate where we were, and decide what to do then,” says Silver. Before they could launch, however, they would have to establish a baseline.