provisions of FDCA Section 403 under study and be either a standard of identity or analogous to other FDCA provisions (eg., imitation, ingredient labeling) for which automatic preemption applied. Finally, some State requirements appeared to be related to both FDCA misbranding provisions, subject to NLEA, and adulteration sections, which are excluded from consideration.
Because many State requirements did not fall neatly into only one of the six study provisions, the Committee used its best judgment to classify and review State food labeling requirements under the provision it considered most appropriate. It did not review labeling issues that were clearly outside its charge (e.g., origin labeling, which is regulated by the U.S. Customs Service and the Federal Trade Commission). Based on the legislative history and text of NLEA, the Committee also excluded from its deliberations concerns related to food safety, grading, kosher, organic, natural, and open-date labeling. In addition, the Committee excluded any analysis of emerging State and local regulatory issues (e.g., environmental "green" labeling), although it believes some of these issues deserve consideration by the Food and Drug Administration (FDA; see Chapter 6).
It was not surprising to the Committee that many State food labeling requirements fit into multiple provisions of FDCA Section 403 because provisions of the Act itself overlap considerably. For example, a requirement that a food bearing a certain name contain a prescribed amount of a particular food constituent may seem to prescribe a standard of identity at the same time that it constitutes a common or usual name requirement.
If the Committee's charge had been only to classify a State food labeling requirement as parallel to one rather than another of the six provisions of FDCA Section 403 under study, which Section was chosen would be of little concern because the implications for preemption would be identical. The Committee recognized, however, that these FDCA provisions have developed over time, beginning with those whose forerunners were contained in the Pure Food and Drugs Act of 1906 [PFDA; i.e., Section 403(b)] and they have been modified by addition rather than by consolidation. Further, from a practical standpoint, it is common FDA enforcement practice to charge violators with violation of multiple FDCA sections. These factors made the Committee's review of FDA requirements and case histories more difficult. However, as discussed earlier, the Committee decided to view its own task broadly: for example, if it was reasonable to view a State regulation as a common or usual name requirement (even if a court might later determine it to be a standard of identity), it was treated as a matter for study by the Committee. Because it was to make recommendations to FDA about which State requirements it should consider adopting, the Committee felt that it would be entirely appropriate to take the broader rather than the