Nutrition Labeling Issues and Directions for the 1990s (1990) / Chapter Skim
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8. Legislation and Regulation
8. Legislation and Regulation
Pages 279-308
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From page 279... ...
The changes in regulations required to implement the Committee's recommendations should be obvious from that discussion, and thus, they are not itemized here. This chapter deals with the other facet of the Committee's charge, that is, to assess the adequacy of existing statutes to support the changes in food labeling requirements that the Committee endorses.
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From page 280... ...
The enactment of legislation Hat directed both FDA and USDA to broaden the coverage and refonn the content of nutrition labeling and set a timetable for He adoption of implementing regulations would accelerate the administrative process and discourage court challenges. CURRENT LEGAL AUTHORITY TO EXPAND NUTRITION LABELING The difficult questions concerning the authority of FDA and USDA under existing laws to implement the Committee's recommendations relate to recommendations to extend nutrition labeling to all packaged foods; foods sold in restaurants; and produce and fresh and frozen meats, poultry, and fish.
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From page 281... ...
Many of its current requirements for food labels represent the assertion of a general authority to adopt the regulations needed to implement the goals of the Act. For example, no provision of the FD&C Act states, in so many words, that FDA may prescribe the content of nutrition information provided voluntarily or require nutrition labeling on foods for which nutrition claims are made or to which one or more nutrients have been added.
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From page 282... ...
19, 1973~. Some believe that this same theory could be extended to support the adoption of regulations mandating nutrition information on all packaged foods (or all except those that FDA chose to exempt)
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From page 283... ...
l~GISlAIlON AND REGUl~lON would support the promulgation of regulations by FDA to achieve this purpose (GMA, 1989)
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From page 284... ...
29,47~29,533, July 19, 1990~. FDA's Authority To Prescribe the Content and Format of Nutrition Libeling The adoption of mandatory nutrition labeling for all packaged foods would probably present the most serious test of FDA's current legal authority.
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From page 285... ...
Nothing in the FD&C Act purports to exempt any of these categories of foods from its basic labeling requirements, although EDA, for practical reasons, has by tradition effectively, although never expressly, exempted all three areas. Significant practical problems would accompany efforts to require nutrition information for any of these categories of food, whether authorized by new legislation or undertaken under existing law.
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From page 286... ...
The agency ultimately retreated from this position, but the reasons it offered had nothing to do with legal authority. In the mid-1970s the agency was urged to require ingredient labeling for foods sold in limited-menu restaurants.
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From page 287... ...
The agency's failure historically to attempt to control the information that restaurants provide about the foods they serve and its extremely modest efforts to influence the information that sellers of produce and seafood provide to consumers could undermine any effort now to exert long-dormant and, perhaps, debatable statutory authority. It remains the judgment of many experienced lawyers, however, that if FDA could devise nutrition labeling requirements for these foods that could be implemented economically and enforced without huge expenditures, courts probably would uphold its regulations against the outright claim that the FD&C Act does not provide the authority for their adoption.
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From page 288... ...
288 NUTRITION LABEllNG
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From page 289... ...
DESIRABILITY OF SEEKING NEW LEGISLATIVE AUTHORITY FOR NUTRITION LABELING The foregoing discussion of FDA and USDA legal authority to mandate nutrition labeling for all packaged foods and extend the requirement, or some variant, to produce, seafood, fresh and frozen meats and poultry, and foods sold in restaurants at least suggests the desirability of new legislation that would lay continuing doubts to rest. And for this reason the Committee, in principle, recommends that Congress amend the FD&C, FIJI, and PPI Acts to enlarge and clarify the authority of the two agencies.
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From page 290... ...
The Committee is also convinced of the desirability of providing point-of-sale nutrition information for fruits and vegetables, fresh and frozen meats, poultry, and seafood, and some foods sold in restaurants, though it recognizes the need to adapt conventional labeling requirements to fit the market realities of these categories of foods. Accordingly, the Committee would consider legislation Hat omitted these foods from any new grant of authority to require nu~ridon labeling to be inadequate.
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From page 291... ...
and clarify the agencies' authority to require nutrition information to accompany foods that currently escape most federal labeling requirements. Such legislation would not only give the agencies' assertion of authority immediate legitimacy, it would also reduce the incentives that third parties might have to challenge regulations the agencies adopt and thereby delay the implementation of the Committee's recommendations.
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From page 292... ...
to establish, beyond question, the legal authority of FDA and USDA to require nutrition labeling on all packaged foods within their jurisdiction and (2) to confirm that the agencies may require point-of
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From page 293... ...
Scientific understanding of the relationship between nutrition and long-term health will not remain static during the next decade, and research may reveal new connections that should be reflected in nutrition labeling. Central Issues To Be Resolved Ciarif cation of FDA and USDA Authority To Mandate Nutrition Obeying It is essential that new legislation lay to rest all doubt that FDA and USDA have the authority to require that labels on all packaged foods within their jurisdiction bear nutrition information.
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From page 294... ...
Coverage of Fresh and Frozen Seafood The Committee urges that the same approach be followed in mandating nutrition labeling for fresh and frozen seafood as recommended above for fresh and frozen meats and poultry, and produce. Coverage of Foods Sold in Restaurants The Committee believes that the general authority of FDA and USDA to require nutrition information for foods sold in restaurants should be confirmed by legislation.
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From page 295... ...
That the food labeling provisions of the FD&C Act have remained essentially unchanged for over 50 years demonstrates that legislation in this field is not likely to be updated frequently. The Committee favors new legislation only on the assumption that it will be drafted to allow the administering agencies freedom to update and revise their labeling requirements as the discoveries of science and the realities of the marketplace dictate.
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From page 296... ...
The question to be addressed is whether new food labeling legislation should expressly confer on the agencies authority to adopt uniform definitions. The Committee believes that current law provides the two agencies adequate legal authority to implement its recommendations on descriptors.
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From page 297... ...
This could mean requiring a food whose label features a desired trait for example, cholesterol free to accord equivalent prominence to undesired traits such as high in fat. The Committee accordingly recommends that new legislation confirm FDA's and USDA's legal authority to require, by regulation, such affirmative disclosures as are needed to ensure that labels are not misleading and to prohibit misleading, although factually accurate, statements when affirmative disclosures are not likely to prevent consumer deception.
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From page 298... ...
Current law appears to provide FDA and USDA with this authority. Exceptions from Mandatory l~eling FDA and USDA already possess, and sometimes exercise, the authority to modify their general labeling requirements for specific foods.
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From page 299... ...
A statutory advisory committee might be a useful vehicle for ensuring that the views of individuals in these sectors are adequately considered. It seems likely that the standard label format will require periodic revision as understanding of nutrition and health is improved by science, as food consumption patterns change, and as merchandising practices evolve.
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From page 300... ...
Institutional Issues The Committee considered a cluster of issues surrounding allocation of responsibility for regulating food labeling, including the wisdom of the current bifurcation of federal authority between FDA and USDA, the occasions and justifications for discrepancies between FDA and USDA labeling requirements, the impact of the distinction between USDA's system of advance label approval and FDA's system of post hoc enforcement, and the sensitive issue of the power of the states to regulate the labels of foods sold within their borders. Although some of these topics were not directly relevant to the Committee's charge, it was quickly apparent that judgments on the central issues of content and format required a thorough understanding of the institutional setting of federal label regulation.
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From page 301... ...
Choice of Regulatory Mode The Committee gave greater attention to the different modes of implementing labeling requirements by FDA and USDA. USDA requires approval in advance for all labels of meat and poultry products.
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From page 302... ...
This recommendation is made with the awareness that two of the three key federal food labeling statutes the ~II Act and the PPI Act—currently provide, without qualification, for preemption of state and local labeling requirements. By contrast, the FD&C Act does not displace state labeling requirements; only if there is a clear conflict with federal requirements or if FDA determines that a specific requirement should be exclusive are state regulations displaced.
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From page 303... ...
Timing of Implementation Several current bills to expand federal authority to regulate food labeling provide for a specific date by which, except for administrative approval of exceptions, new labeling regulations must be complied with. The Committee is eager to see its recommendations or other sound recommendations for improving the nutrition information on food labels implemented quickly.
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From page 304... ...
It is possible, however, that Congress may fail to act in the near future to clarify the authority of FDA and USDA to refonn and broaden their nutrition labeling requirements. It is also possible that one or both agencies may decide to proceed with reforms without, or while
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From page 305... ...
Nonetheless, FDA and DHHS have already initiated rulemaking to revise and expand current nutrition labeling requirements for foods within FDA's jurisdiction. FDA's notice of proposed rulemaking asserts that the proposed reforms can all be supported by its current statutory authority.
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From page 306... ...
1990. A Guide To Federal Food Labeling Requirements.
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