Nutrition Labeling – The Second Time Around

By Bruce Silverglade

The Nutrition Labeling and Education Act (NLEA) was enacted in 1990 and the familiar “Nutrition Facts” panel became mandatory in 1994.  Now, twenty years later, the Food and Drug Administration (FDA) says the list of nutrients, serving sizes, and Daily Values on the label need to be updated.  Expect the announcement this week, with lots of fanfare – the First Lady herself is expected to make the formal announcement as part of an anniversary celebration of the White House’s “Let’s Move” anti-obesity campaign.

As a young lawyer, I worked hard to push for enactment of the NLEA during my previous career with Center for Science in the Public Interest.  Expectations where high.  Representative Henry Waxman, then Chairman of the House Health Subcommittee, sponsored the bill.  I remember sitting in a three-walled cubicle with Rep. Waxman’s legislative assistants Bill Corr, now Deputy Secretary of the Department of Health and Human Services (HHS), and Bill Schulz, now General Counsel of HHS, to craft the legislation.

We wanted the nutrient content of foods to be expressed both 1) in terms of a customary serving of the food; and 2) in terms that would enable the public to understand whether a serving of the food had relatively high or low amounts of each nutrient listed.

After the usual legislative wordsmithing, section (2)(b)(1)(A) of the NLEA required information be conveyed “in a manner that enables the public to . . . understand its relative significance in the context of a total daily diet.”  This vague legislative language led FDA to concoct what became known as Daily Values for most nutrients that were required to be listed on the label.  FDA used its new Daily Values to set criteria for health and nutrient content claims for foods.

Looking back, requirements for mandatory nutrition labeling did not provide all of the benefits that were anticipated.  It is true that as many as 65 percent of consumers say they read Nutrition Facts labels and about 30 percent say that they have changed their purchasing decisions based on what they have read.    Many foods were reformulated and thousands of new “low fat” foods appeared on the market.  Unfortunately, some consumers thought they could eat the whole box of a “low fat” food and obesity worsened.  Subsequent surveys show that most consumers do not understand the term “Daily Value.” In response, some retailers have instituted shelf-marking schemes to communicate nutritional value at the point of purchase.  While some of these scoring systems are based on criteria acceptable to FDA, such as Wal-Mart’s “Great for You” seal, others are based on proprietary nutrition criteria not necessarily endorsed by FDA.

The Nutrition Facts panel has become ubiquitous in American society.  But what has been the actual impact on the average American’s diet?  The results are unclear.  The nutrition label is a tool that consumers can use to help meet the nutritional recommendations of the Dietary Guidelines, but actually changing diets requires more than just information.  The U.S. was the first country to enact legislation requiring mandatory nutrition labeling.  Hopefully, lessons have been learned.  Stay tuned to OFW Law’s Ag/FDA Blog for the details of FDA’s proposed regulation.

Clearly, food companies should closely analyze FDA’s proposal to change nutrition labeling requirements, not only to ascertain the impact on their product lines, but also to help ensure that the details of the new proposed rules achieve their intended purpose without merely placing new regulatory burdens on the industry.  Expect at least a 60 day comment period with the possibility of an extension.