This Article critiques the role of the FDA in providing consumers with accurate and relevant food label information, identifies impediments in the pursuit of its mission, and offers solutions to those impediments.
Part I of this Article traces the history of U.S. food labeling and health claims laws. Current food laws and their regulation have developed over time. The first federal legislation was passed in the early 1900s. The food laws of today have certainly been influenced by past food laws, which were largely a reaction to societal events. A brief summary of the historical development of our nation’s important food laws should serve to illustrate this point. Next, Part II demonstrates the significant hurdles that prevent the FDA from fulfilling its mission of consumer safety. The FDA has too many regulations to enforce, too many products and establishments to keep up with, and not enough staff or funding to adequately do either. Currently, supplement manufactures are not required to submit safety evidence before selling products. Therefore, the FDA does not investigate safety issues until becoming aware of a widespread health concern. The administrative hurdles are not internal to the FDA. The FDA is one of several agencies responsible for the regulation of food, and there are differing rules and key term definitions between agency regulations. Having varying rules and term definitions makes for conflicting laws and consumer confusion.
Part III reviews studies on the effectiveness of food labels and health claims, as well as how the courts have treated health claims. Finally, Part IV argues that food and nutrition supplement laws should be streamlined. Although several authors ably identify solutions for how this may be accomplished, the sheer number of solutions that have been posited over the past several years is too plentiful to reasonably implement. Therefore, this Article suggests a combination of a few solutions that, taken together, are manageable implementations, which will maximize positive change in food law protections. The proposed improvements to food laws will be limited to establishing a simple mandatory front-of-package labeling scheme that will include: (1) eliminating structure/function claims; (2) greatly revising and simplifying nutrition content claims laws; (3) having the FDA issue letter grades for products based on evidence of health claims while allowing agreed-on health claims language to appear on the label; and (4) deferring to the expertise of the FDA in the courts.