If you buy cereal for your children, or yourself, you should be aware that the Food and Drug Administration thinks you are falling down on the job.
Last week, the FDA issued “Guidance” to the food manufacturers of America pronouncing the agency deeply troubled over efforts by various segments of the business to use “Front of Package” branding to delineate their products as useful — say a “Smart Choice” — for the consumer.
“FDA’s research has found that with FOP labeling, people are less likely to check the Nutrition Facts label on the information panel of foods (usually, the back or side of the package),” the agency wrote in its public announcement of its concern. “It is thus essential that both the criteria and symbols used in front-of-package and shelf-labeling systems be nutritionally sound, well-designed to help consumers make informed and healthy food choices, and not be false or misleading.
“The agency is currently analyzing FOP labels that appear to be misleading,” the notice continued. “The agency is also looking for symbols that either expressly or by implication are nutrient content claims. We are assessing the criteria established by food manufacturers for such symbols and comparing them to our regulatory criteria.”
You need to read the whole letter from Dr. Barbara O. Schneeman, director of the Office of Nutrition, Labeling and Dietary Supplements at the FDA’s Center for Food Safety and Applied Nutrition.
Dr. Schneeman is almost certainly an accomplished professional, and the FDA staff working with her is no doubt full of competent, hardworking professionals, but when exactly did the federal government get into the business of assessing the branding of ordinary food products?
There has been a debate for decades over the amount of First Amendment protection that extends to commercial speech, with many purists arguing for the obvious position that if the guarantee of free speech covers almost every sort of pornography and vulgarity, then it ought surely to extend to commercial advertising as well.
Invitations to criminal enterprise aside, the sort of advertising “puff talk” we are routinely exposed to in our daily lives is simply not the sort of speech we want the government patrolling for “truth content.”
The current debate over industry-sponsored standards for FOP has its genesis in a long-running debate over what Johnny ought to eat for breakfast. Some cereal manufacturers have come up with the “Smart Choice” program that entitles products maintaining certain nutrition standards to use the “Smart Choice” logo, even though some of those products — Froot Loops is often mentioned in the commentary– have sugar mixed in to make them appealing to kids.
Dr. Schneeman is worried that consumers (i.e., parents) will be taken in by such schemes and begin to buy food products that they would otherwise suspect might not be of greatest nutritional benefit for their children.
The FDA’s research shows, according to her letter, that FOP branding makes people less likely to check back-of-package nutrition facts. Perhaps. I’d like to see the research.
But even if it is true that, for a significant number of shoppers, FOP is an off-ramp from the very best diet imaginable, it does not follow that “[i]t is thus essential that both the criteria and symbols used in front-of-package and shelf-labeling systems be nutritionally sound, well-designed to help consumers make informed and healthy food choices, and not be false or misleading.”
Note first that our ingrained hostility to “false and misleading” information is harnessed to the idea that packaging must promote nutritionally sound food choices and must help us make healthy food choices. You can be against “false claims” and against false arguments, such as the one advanced by the FDA here.
Americans don’t want the federal government morphing into the food police. They particularly don’t want the FDA issuing what amounts to an invitation to plaintiffs’ lawyers to start suing food manufacturers for misleading, hurtful FOP claims.
The industry, backed by small-government conservatives and just common-sense, leave-us-alone citizens, should push back against the FDA’s imagined, urgent demand for a new regulatory push into the packaging of every food product in America because, make no mistake, that is where last week’s “guidance” is pointing.
Examiner Columnist Hugh Hewitt is a law professor at Chapman University Law School and a nationally syndicated radio talk show host who blogs daily at HughHewitt.com.
