Food Labelling

An Eyedropper’s Worth of Juice

April 29, 2014
FDA, Food and Agriculture

Nihal Parkar, MJLST Notes and Comments Editor

Coca Cola’s Minute Maid Pomegrenate Blueberry Juice Blend contains about an eye-droppper’s worth of pomegranate and blueberry juices, with apple and grape juices constituting 99.4% of the blend. POM Wonderful, a competitor that mainly markets pomegranate juice, filed a false advertising suit against Coca Cola under the Lanham Act. The Ninth Circuit held that federal food regulations preclude private actions challenging food product labels.

Specifically, the federal Food, Drug, and Cosmetic Act grants the FDA authority over food labeling. However, it is not quite clear if the FDA has exclusive authority over potentially deceptive food labeling. Coca Cola has argued that exclusive authority was granted to the FDA so that food manufacturers could rely on a uniform set of standards for food naming and labeling. POM has countered by saying that the FDCA and FDA regulations only provide a minimum floor for food regulations, while other laws intended to protect consumers and competition are still applicable to food manufacturers.

The Supreme Court granted cert and recently heard oral arguments. Coca Cola has continued to argue that its labeling meets all federal regulations. However, various Justices expressed skepticism, and asked why meeting federal labeling regulations, while necessary, would be sufficient to grant Coca Cola immunity even if the labeling did mislead consumers. The following exchange from the oral arguments is indicative of the tenor of the hearings:

Kathleen M. Sullivan (for Coca Cola): Because we don’t think that consumers are quite as unintelligent as POM must think they are. They know when something is a favored blend of five juices, non-min — the non-predominant juices are just a flavor.
Justice Anthony Kennedy: Don’t make me feel bad, because I thought that this was pomegranate juice.

It remains to be seen though, if the Supreme Court ultimately agrees with POM. A decision is expected later this year.

Required GMO Food Labels Without Scientific Validation Could Undermine Food Label Credibility

November 18, 2013
FDA, Food and Agriculture

by George David Kidd, UMN Law Student, MJLST Managing Editor

GMO food-label laws that are on the voting docket in twenty-four states will determine whether food products that contain genetically modified ingredients should be either labeled or banned from store shelves. Recent newspaper articles raise additional concerns that states’ voting outcomes may spur similar federal standards. State and perhaps future federal regulation, however, might be jumping the gun by attaching stigma to GMO products without any scientific basis. FDA labeling regulation, discussed in J.C. Horvath’s How Can Better Food Labels Contribute to True Choice?, provides that FDA labeling requirements are generally based upon some scientific support. Yet, no study has concluded that genetically modified ingredients are unsafe for human consumption. Required labeling based upon the belief that we have the right to know what we eat, without any scientific basis or otherwise, could serve to further undermine the credibility of food labeling practices as a whole.

The argument for labeling GMO food products is simple: we have a “right to know what we eat.” The upshot is that we should know, or be able to find out, exactly what we are putting into our bodies, and be able to make our own consumer decisions based upon the known consequences of its manufacture and consumption. But, the fact that we do not know whether our food is synthetic or its exact origins might not matter if the product is both better for us and the environment. Indeed, the FDA admits that “some ingredients found in nature can be manufactured artificially and produced more economically, with greater purity and more consistent quality, than their natural counterparts.” If some manufactured products are better than their natural counterparts, why are we now banning/regulating GMO products before we know whether they are good or bad? If we knew they were bad in the first place, GMO products would likely already be banned.

Analysis is an important part in establishing the underlying credibility of labeling claims on food products. Without some regulation of label credibility there would be an even greater proliferation of bogus health claims on food packaging. Generally, the U.S. Food and Drug Administration has held that health claims on food labels are allowed as long as they are supported by evidence, and that food labeling is required when it discloses information that is of “material consequence” to a consumer in their choice to purchase a product. For example, the FDA has found that micro- and macro-nutritional content, ingredients, net weight, commonly known allergens, and whether “imitation” or diluted product is used, must be included on food labeling. The FDA has not, however, required labeling for dairy products produced from cows treated with synthetic growth hormone (rBST) because extensive studies have determined that rBST has no effect on humans. Just imagine the FDA approving food labeling claims without evaluating whether or not that claim was supported by evidence.

Premature adoption of new state or federal labeling policy would contradict and undermine the current scientific FDA standards underlying labeling regulation. The decision of whether to require labeling or ban GMOs, absent any scientific rigor as to whether GMO products are safe, only serves to perpetuate the problem of “meaningless” food labels. Further, the possible increases in food cost and labeling requirements might ultimately be passed on to the consumer without enough information to justify the increase. But now that GMOs are allegedly commonplace ingredients, shouldn’t legislation wait until the verdict is in on whether GMO products are good or bad for human health before taking further action?

Is Food the New Tobacco: Science, Advertising, and the War against Obesity?

April 18, 2013
FDA, Food and Agriculture, Public Health

by George David Kidd, UMN Law Student, MJLST Staff

Globally, obesity and its underlying ailments have overtaken tobacco as the top preventable cause of death. But, while eating right and exercising might go a long way towards solving the problem, the solution might not be that simple. What drives consumer buying behavior, through more modern forms of how we interact with the world, might substantiate food science and advertising as powerful mechanisms to attack the obesity epidemic.

In Food Advertising and Childhood Obesity: A Call for Action for Proactive Solutions, published in Issue 12.2 of the Minnesota Journal of Law, Science & Technology, life and health sciences author Roseann Termini and others add advertising to the already-large list of “other” factors affecting childhood obesity rates. Indeed, children are not as informed as adults about health and may be more likely influenced by certain channels of advertising, such as television. To address this concern, one of her proposed solutions is to ban, regulate, or even shift tax structure in order to control advertising that specifically targets children. While this might be an effective mechanism to reduce demand, it may only be a partial solution. For one, because children are not, generally, the direct purchaser of food, but rather depend upon parents, to what extent does advertising actually affect the buying decisions of parents?

An article recently mentioned in The New York Times, The Extraordinary Science of Addictive Junk Food, might help answer this question. Mr. Moss similarly explores the “obesity epidemic,” but from a corporate standpoint, positing that consumers are primarily driven to buy what “tastes good.” While Mr. Moss’s article also agrees that advertising is part of the problem, he paints a more complete picture of what might be the underlying cause of parental acquiescence in a child’s poor dietary choices. The perfect combination of salt, fat, and sugar might be, in part, to blame as addicting foods that influence buying behavior. In this way, food is likened to tobacco, except, unfortunately, while people can choose whether to begin smoking, all people must eat.
While the analogy between food and tobacco may be imperfect, the point is there. If the majority of the food available to the everyday consumer is manufactured as addicting, to what degree is there a choice to eat healthy? If, in order to survive in the marketplace, a corporation has to manufacture “addicting” foods to compete, how can we make these addicting foods into disease-preventing rather than disease-aiding choices? Food science and advertising may contain the answer.

TV Advertising Not the Only Problem in Fight Against Childhood Obesity

October 26, 2012
Food and Agriculture, Public Health

by Bryan Morben, UMN Law Student, MJLST Staff

What happened to the days when kids would get together to play a game of football in the neighborhood? Or what about playing with Barbie dolls, cabbage patch kids, or a slumber party? Children today are just not entertaining themselves like this anymore. I have three younger brothers, and all I ever see them doing is sitting on the computer, playing videogames, or watching TV.

All of my brothers are as skinny as it gets, but probably only because they are also very active in school sports, especially hockey. Many other kids their age and younger also waste hours in front of a monitor or TV screen, but without the physical activity. Childhood obesity is turning into what some would call an “epidemic.” More than twenty-three million children and teens in the U.S. are overweight or obese, a four-fold increase over the past four decades.

A relatively recent study in Canada suggests that banning fast-food advertising to children may lower obesity rates. For the last thirty-two years in Quebec, it has been illegal for fast-food companies to advertise to kids. Researchers have estimated that as a result, children in Quebec consumed 13.4 to 18.4 billion fewer calories per year. Additionally, Quebec has the lowest childhood obesity rate in Canada.

Childhood obesity is generally the result of eating too many calories and not getting enough physical activity. Banning fast-food advertisements to kids may be one solution to help reduce the first part of that equation. Check out the article “Food Advertising and Childhood Obesity: A Call to Action for Proactive Solutions” in Volume 12, Issue 2 of the Minnesota Journal of Law, Science & Technology. It gives a great analysis of the relationship between food advertisements and childhood obesity and proposes solutions that may assist in reducing the impact of advertisements on children’s health.

But I question whether banning fast-food ads is really the answer we should be focusing on. I think the problem runs deeper than that. If kids were forced to put down the controller or remote and burn off some calories outside they wouldn’t be in the position to be watching a fast-food ad in the first place. Let me know what you think the most effective solution might be by commenting below.

Food Trends: Mid-Calorie Foods

October 25, 2012
Food and Agriculture, Public Health

by Johanna Smith, UMN Law Student, MJLSTStaff

Looking at the packaging on a food item can be very overwhelming. Not only does the product contain required nutritional information and an ingredients list, many products also contain health claims or statements on the front of the package to grab the customer’s attention. Common terms to see include organic, low-fat, high fiber, and low-carb. In “How Can Better Food Labels Contribute to True Choice?,” recently published in the Minnesota Journal of Law, Science & Technology, J.C. Horvath discusses the evolution of the regulation of claims made on food packaging. In addition to regulatory pressure, the other major source of pressure that determines what shows up on food packaging is consumer preference.

A decade or so ago, the hot trend was to highlight items as being non-fat or low-fat. However, consumers quickly realized that eliminating all fat and calories eliminated the taste of the food that they liked and the popularity of these items declined. This set the stage for the successful marketing of mid-calorie foods. These foods have less fat and fewer calories than the original version of the food, but more than the typical diet food. The goal is to mimic the taste profile of the regular version of the product, but reduce the calories and fat. Examples of recent marketing successes include Edy’s/Dreyer’s Slow Churned ice creams and Hershey’s Simple Pleasures chocolates. Many different drinks, including soda, sports drinks, and juice are also trying to find success in this balancing act.

While I applaud the effort to provide “healthier” options to consumers, mid-calorie foods should not be thought of as diet foods. The labels used on mid-calorie food packages should not lead consumers to think that it is a low-fat or low-calorie diet food. In many instances, the mid-calorie food still contains relatively high amounts of fat and calories per serving. If incorporated into a person’s diet correctly, mid-calorie foods are an easy way to eliminate unnecessary fat and calories. For example, if someone has already decided to eat some chocolate, choosing Hershey’s Simple Pleasures over a regular Hershey’s chocolate bar is a good choice. But, the better choice may be to not have any chocolate at all. Moderation and variety are still the keys to a healthy diet.

Food Label Regulations Fall Short

October 2, 2012
Food and Agriculture

by Bobbi Leal, UMN Law Student, MJLST Articles Editor

A recent study, published in Agricultural Economics, found that the average body mass index for consumers that read nutrition labels is lower than those that do not read the labels. This finding implies that understanding and utilizing food and nutrition labels provides consumers with the information needed to make informed decisions about what they eat. However, a recent article by J.C. Horvath published in the Minnesota Journal of Law, Science & Technology, “How Can Better Food Labels Contribute to True Choice?” makes evident that food labeling has a long way to go before it truly gives consumers the information necessary to make informed decisions.

Food label regulations, outlined by the Food and Drug Administration, have a number of flaws. The FDA has declined to define strict standards for use of the food label “all-natural,” claiming that the term is too nebulous to be strictly defined and standardized across the entire food industry. Undoubtedly, consumers assume that a food labeled as “all-natural” has not been chemically processed or structurally altered from its natural state. Unfortunately, this is not the case. The FDA has a vague policy which defines the term “natural,” to mean “nothing artificial or synthetic…is included in, or has been added to, the product that would not normally be expected to be there.” According to the Wall Street Journal, some ingredients that have been labeled as “all-natural” include high fructose corn syrup, genetically modified plants, and sodium benzoate.

Similarly, the approved use of certain terms, such as “artificial flavor,” “natural flavor,” and “artificial coloring” often hide significant details about the nature of the food. These three phrases can stand in for over 3900 food additives that come from a wide range of sources, giving the consumer no real notice of the substance or origin of the “flavor” or “coloring.” For example, beef tallow, gelatin, and lard can all be covered by these three phrases. Even the requirements for listing allergens is incomplete, as the FDA only requires that eight of the known allergic-reaction-inducing ingredients be explicitly listed: milk, eggs, fish, Crustacean shellfish, tree nuts, peanuts, wheat, and soybeans.

This recent study concerning the use of nutrition labels makes clear that when consumers read and understand food labels, they can make better choices for their health. In order for this to occur, however, it is imperative that the food labels which consumers rely upon are transparent and accurate. Food label regulations have not yet accomplished this objective.

Food Labelling

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