Keep Out FDA: Food Manufacturers' Ability to Effectively Self-Regulate Front-of-Package Food Labeling

DePaul Journal of Health Care, Vol. 17, pg. 1 (2015).

Belmont University College of Law Research Paper No. 2017-30

30 Pages Posted: 5 Sep 2017

See all articles by Ellen Black

Ellen Black

Belmont University - College of Law

Date Written: 2015

Abstract

The headlines on any given day claim that the American "obesity epidemic" continues to worsen.' According to these headlines, Americans, both adults and children, are increasingly becoming more obese, are more likely to be diagnosed with diabetes, and will likely prematurely die due to this preventable disease. Numerous private industries, as well as the government, seek to rescue Americans from this crisis. As the obesity epidemic debate intensifies, the call for more government regulation correspondingly grows. There are critics, however, who question the legitimacy of this epidemic and the need for more regulation. For example, some well-known scholars opine that the obesity numbers are inflated based upon the inaccurate methodology used to categorize a person as obese. Instead, these critics argue that until an appropriate mechanism is developed to identify the obese population with consistent statistics proving there is an epidemic, the current rhetoric is merely an attempt to increase government involvement. In addition, recent studies also indicate that the obesity numbers are decreasing, thereby further questioning the need for more government regulation.

Assuming the "obesity epidemic" exists, the next issue involves identifying its cause. Unsurprisingly, this answer is not only controversial, but also complex with multifaceted reasons for why Americans are more obese than ever before in history. Health experts point to lifestyle choices as one reason for our population's obesity. For example, lifestyle choices such as poor nutrition habits or lack of physical activity both contribute to weight gain. Another reason for obesity may relate to an individual's genetic makeup, as evidenced by studies revealing that genes may affect how and where a person stores fat. Lastly, some experts point to the environment as contributing to a lifestyle that leads to obesity. Within this concept of environment, health experts point to food advertising, fast food restaurants, larger portion sizes, and hectic work schedules as potential causes of obesity.

Regarding food advertising, these experts claim that the food industry is directly responsible for creating advertising that encourages consumers to purchase unhealthy food products, thus furthering the obesity crisis. These food industry critics equate the conduct of the food industry to the tobacco industry, by comparing the marketing strategies, maximum profit interests, and strong lobbying efforts of each and finding parallel practices of both. Similar to cigarette companies, the critics argue that food companies - which are in business to make money - market and sell products based upon whether the public will purchase them, which may require adding or reducing sugar and fat. Acknowledging that the public is generally aware of the bad health effects of smoking, these critics desire the public to have the same level of awareness regarding poor diet choices and blame the food industry for not only creating foods with minimal nutritional value, but also for misleading the public about the actual nutritional value. Specifically within the realm of advertising, the critics claim the food industry misleads consumers through food labeling, including labeling that occurs on the front-of-the package ("FOP").

This article focuses on FOP food labeling and highlights food labeling regulations, with particular attention paid to the absence of FOP labeling laws. In this absence, the food industry has initiated its own set of regulations for FOP labeling, and the article analyzes whether the food industry should be trusted to self-regulate in this important area of food labeling. To be sure, critics argue that the food industry is not capable of such self-regulation - when its true motives are profits, not improving health - and that the government is better equipped to battle the "health crisis." But even without government oversight, the food industry retains a checks-and-balances system in place because consumers who are allegedly misled by FOP labeling may pursue a legal remedy by filing a claim against the food manufacturer. Thus, industry proponents point to self-regulation as an efficient mechanism to avoid the pitfalls of government bureaucracy and emphasize how effective self-regulation has been in numerous other industries.

Keywords: front-of-the package ("FOP"), food labels, food labeling, FDA, self-regulation, obesity

Suggested Citation

Black, Ellen, Keep Out FDA: Food Manufacturers' Ability to Effectively Self-Regulate Front-of-Package Food Labeling (2015). DePaul Journal of Health Care, Vol. 17, pg. 1 (2015). ; Belmont University College of Law Research Paper No. 2017-30. Available at SSRN: https://ssrn.com/abstract=3030900

Ellen Black (Contact Author)

Belmont University - College of Law ( email )

1900 Belmont Boulevard
Nashville, TN 37212
United States

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