Regulating Inherently Subjective Food Labeling Claims

By Beyranevand, Laurie J. | Environmental Law, Summer 2017 | Go to article overview

Regulating Inherently Subjective Food Labeling Claims


Beyranevand, Laurie J., Environmental Law


For many consumers, the modem food label serves as the sole source of information regarding any individual food product. While it may be considered informative in some respects, it is often enigmatic in others. The present debate regarding the creation of a federal regulation to define use of the term "healthy" exemplifies the difficulties associated with seemingly subjective food labeling claims. The law requires manufacturers to include certain facts on food labels. However, they are permitted to include additional voluntary statements related to the healthfulness of the food product, the presence or absence of certain ingredients, and information related to production and growing methods, among other things. These claims have the potential to cause consumers a great deal of confusion, particularly with regard to their veracity. Many scholars have analyzed First Amendment limits on the Food and Drug Administration's (FDA) ability to restrict specific types of claims, yet few have addressed the issue of whether the agency can and should restrict claims unable to be supported by significant scientific agreement due to the inherent subjectivity of the claim. This Essay proposes FDA adopt such an approach as a means of effectuating the Federal Food, Drug, and Cosmetic Act's purpose of protecting consumers from false or misleading food product labels. As an alternative, if FDA is unwilling to restrict those claims altogether, this Essay suggests the agency could require curative disclaimers on labels, as they do for qualified health claims, that are not supported by significant scientific agreement.

I.    INTRODUCTION                                 544
II.   FOOD AND DRUG ADMINISTRATION'S AUTHORITY TO
      PROHIBIT MISLEADING LABEL CLAIMS UNDER THE
      FEDERAL FOOD, DRUG, AND COSMETIC ACT         548
III.  FIRST AMENDMENT CONCERNS OVER LIMITS TO
      FOOD LABELING LANGUAGE                       551
IV.   A BAN ON SUBJECTIVE CLAIMS                   555

I. INTRODUCTION

The American food label may be most aptly described as informative in some respects, yet utterly confounding in others. Currently, the debate over how to appropriately craft a federal regulation to define use of the term "healthy" serves as a useful illustration of the potential for difficulty, particularly with regard to seemingly subjective claims. (1) While manufacturers are required to include certain facts on food labels, (2) they are also permitted to include additional voluntary statements regarding the healthfulness of the food product, (3) the presence or absence of certain ingredients, (4) and information related to production methods, (5) among other things. Consequently, marketers include information on labels that can be grouped into a few different categories, including claims about certain product attributes. (6) Research demonstrates that consumers do, in fact, use this information when making purchasing decisions (7) but may not fully understand or trust the veracity of certain claims. (8) Moreover, consumers may falsely perceive labels as the result of a regulatory process involving significant agency oversight. (9)

In turn, consumers simultaneously drive industry to develop front of the package statements in response to demand for certain food product attributes, yet often lack knowledge or access to evidence about whether those claims actually meet their expectations. This is further complicated by the dearth of political consensus in policy discussions over the propriety of government intervention in labeling--whether to create a uniform federal requirement for the labeling of genetically engineered foods serves as an illustration of this issue. (10) Consequently, the resulting regulatory environment consists largely of inconsistent standards. (11) Because certain claims have specific regulatory definitions whereas others may be influenced by nonbinding agency guidance or subject to agency oversight only when the statement is allegedly misleading, even the most discerning consumers would likely experience difficulty when attempting to assess an individual labeling claim. …

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