This is a guest blog-post by Professor Timothy D. Lytton
In my previous posts I have proposed that the FDA regulate front-of-package nutrition labels by better enforcement of existing regulations and by setting minimum standards for labels that rate the overall nutritional value of foods. By contrast, the Center for Science and the Public Interest as well as the Fooducate Blog have advocated that the FDA develop and impose on the food industry “a simple, uniform science-based system [that] would bring consistent and reliable information to the marketplace and help consumers choose more healthful diets.”
However, the high level of complexity involved in designing nutritional rating systems gives rise to two reasons to prefer a regulatory approach that merely sets minimum-standards.
First, there is little reason to suppose that government policymakers will be able to create a system that is superior to those developed by research scientists in academia and industry. Disagreement among experts in industry and academia as to the best approach to nutrient profiling—even after millions of dollars of investment and years of research—is significant and ongoing. By contrast, merely setting minimum standards is a less complex task that is more likely to generate consensus among experts, who do agree on many basic principles of nutrition. Setting minimum standards is a common regulatory tool well within the expertise of the FDA and likely to elicit few complaints about the agency acting beyond the powers delegated to it by Congress.
Second, allowing for experimentation and competition among private-sector groups is likely to advance knowledge in the area of nutrient profiling and food labeling more effectively than the development and imposition of a single, centralized government scheme. Minimum government standards will create space for genuine experimentation and competition aimed at advancing knowledge while eliminating merely profit-driven research and the use of front-of-package nutrition labels as just another marketing strategy. There is also reason to believe that market incentives, under certain circumstances, will produce high quality scientific information. While allegations of conflict of interest and “junk-science” surround manufacturer-sponsored front-of-package labels, such as Smart Choices, the same is not true of shelf labels developed by or for retail stores. The Guiding Stars and NuVal labels have been singled out for the scientific integrity of their ratings, even among critics of nutrient profiling generally. One reason may be that retail supermarkets are less interested in selling any particular type or brand of food, including their own their own store brands, than in attracting consumers into their stores. Whereas manufacturers have an incentive to adopt nutrient profiling schemes that favor their products—regardless of the product’s nutritional value—retail supermarkets draw customers into their stores by offering them reliable nutrient profile labels that, for some consumers, enhance their shopping experience.
The most effective role for government in the regulation of front-of-package nutrition labels is not to supplant private sector experimentation and competition but rather to ensure that it is not corrupted by unscrupulous companies willing to put profits ahead of scientific integrity.
Timothy D. Lytton is the Albert and Angela Distinguished Professor of Law at Albany Law School where he teaches regulatory law & policy, constitutional law, administrative law, and tort law. His article “Signs of Change or Clash of Symbols? FDA Regulation of Nutrient Profile Labeling” (forthcoming in Health Matrix, vol. 19, no. 2) is available online by clicking here. He is also working on an article about regulation of nutrition standards for school food. For more information, visit his Albany Law School faculty website.
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