Nutrition Labeling Issues and Directions for the 1990s (1990) / Chapter Skim
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Appendix D: Food Standards and the Quest for Healthier Foods
Appendix D: Food Standards and the Quest for Healthier Foods
Pages 320-342
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From page 320... ...
~~* INTRODUCTION AND SUMMARY In 1938, in order to protect the American public from what it perceived to be increasing debasement of the traditional food supply, Congress enacted legislation that authorized the Food and Drug Administration (FDA)
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From page 321... ...
Third, a general rule could be adopted to permit the accurate use of defined descriptors, such as low-fat, with any food name, whether standardized or nonstandardized. Fourth, if altered versions of standardized foods are to be treated differently than altered versions of nonstandardized foods, as appears to be the current rule, FDA should, through public rulemaking, articulate a coherent distinction (if one exists)
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From page 322... ...
. the word 'imitation' and, immediately Hereafter, the name of the food imitated.'' l° Procedural Requirements Although Congress empowered EDA to issue food standards whenever in its "judgment" to do so would promote "honesty and fair dealing in the interest of consumers," it afforded FDA little leeway in the procedures to be followed to adopt a s~ndard.l1 Congress enacted the Federal Food, Drug, and Cosmetic Act 8 years before the Administrative Procedure Act was adopted Thus, the concept of notice and comment nulemaking was essentially alien to Congress
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From page 323... ...
At one time it was estimated that standardized foods account for approximately half of the supermarket bill of the American consumer.l5 There are 19 categories of food standards, although two categories alone—milk and cream, and cheese and cheese products- account for 104 discrete standards. The largest single category of food standards is cheese and cheese products, totaling 73 discrete foods.
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From page 324... ...
a concern to restrain the growing use in food production of chemical additives if safety had not been demons~ated.l8 The importance of food standards in the marketplace went far beyond the food being sla~i~ FDA broadly interpreted the prohibition against "purporting to be" a standardized food. Although a literal reading of "purports to be" might imply an attempt to 'pass off" the substitute as the real thing, FDA took the position that any food, no matter how truthfully labeled, which looked like or tasted like a standardized food 'purported to be" that food.
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From page 325... ...
Section 403(g) [which bans foods that purport to be standardized foods]
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From page 326... ...
. FDA's Policy Evolves Two separate developments helped push FDA into resolving the conflicts created by its interpretation of food standards and substitutes for standardized foods.
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From page 327... ...
This regulation permitted manufacturers to produce variants of standardized foods and know that they could do so without running the risk of being branded an imitation. The regulation was upheld against challenge by consumers.33 Having defined objective criteria for avoidance of the term imitation, the agency attempted to apply nomenclature standards evenhandedly to substitutes for both standardized and nonstandardized foods.
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331~. The principal disputes today and in the near future over the use of standardized names in nonstandardized food products will involve reduced-calorie and reduced-fat versions of standardized foods.
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From page 329... ...
The recently completed Report and Recommendations of the National Commission on Dairy Policy, an organization of dairy producers created by Congress, proposed that FDA enforce existing food standards "to protect the consumer from fraud and deception" and more strictly enforce the misbranding provisions of the Act, 'particularly with regard to non-standardized foods which purport to resemble foods for which standards of identity or common or usual names have been established.''41 The Commission took issue with FDA's definition of "imitation" as being based solely on nutritional inferiority and asked Congress to define the term imitation "to be applied to any food product that simulates a standardized food.' Cheese makers are bearing the brunt of the consumer's changing attitude toward the value of fat in foods. Unlike the National Commission on Dany Policy, however, the United States Cheese Makers Association has supported the adoption of a system to name fat-modified cheeses by using qualified versions of the standardized name.43 Using a Wisconsin regulation as a model, the Association urged the creation of a general standard for versions of standardized cheeses with reduced mink fat content.
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From page 330... ...
charged both that a standardized food name was misleading and that modified products should not be required to bear "unfamiliar or pejorative names."48 CSPI stated that "the current law poses obstacles to updating nutntionally-obsolete standards and to marketing new, more healthful products. I;DA should take steps to encourage the food industry to reformulate and name foods more consistently with current nutritional goals, without violating consumers' expectations about the quality of such foods."49 CSPI also urged FDA to first review the names of standardized foods that include nutritional terms and revise those that no longer reflect contemporary thinking.
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From page 331... ...
The Milts Industry Foundation and the International Ice Cream Association similarly criticized the cumbersome procedure for amending standards. These associations urged FDA to "appoint a blue ribbon committee of qualified individuals from FDA, the states, the food industry, and consumer organizations to develop a mechanism by which the process for amending existing standards and establishing necessary new standards can be improved."53 Examination of industry's comments demonstrates that there is some confusion concerning exactly what FDA's policy is on the use of standardized names in nonstandardized foods.
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From page 332... ...
Although FDA's position does not seem to satisfy industry today because of the desire to delete or reduce ingredients such as fat from s~ardized foods, it must be recognized that it in fact represents a substantial departure from the agency's traditional interpretation. There is little question that a court following the Quaker Oats precedent would hold calcium-fortified or vitamin C-fortified tomato juice or enriched raisin bread to be illegal as foods that purport to be the standardized food but that do not meet the standard.
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From page 333... ...
Similarly, one would probably get different results if one asked consumers whether they would buy ice cream without any cream in it, or ice cream without any fat in it. It is also important to consider whether use of the standardized name as part of a modified food has policy implications or is merely an attempt to "pass off" an inferior product by using the name of a superior product.
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From page 334... ...
Finally, the state of flux in which the agency finds itself on this issue is perhaps best reflected by the fact that it is apparently quite willing to issue temporary marketing permits for the manufacture and sale of altered versions of standardized foods. The agency has issued three temporary marketing permits for "light ice cream," a product whose label declares it to contain "reduced calories" and "reduced fat."S7 Similarly, in 1989 the agency issued six temporary marketing permits for "light" sour cream.
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From page 335... ...
There is, however, a persistent belief that FDA policy stifles innovation. The clear message of many companies during the food labeling hearings was that FDA's attitude toward the naming of nonstandardized versions of standardized foods was hindering innovation.
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From page 336... ...
Where, as here, the brand name intentionally overpowers the common or usual name of the food, one might question whether the need to avoid He use of standardized names in nonstandardized products serves to protect or to mislead consumers. USING FOOD STANDARDS TO IMPROVE THE NUTRITIONAL QUALITY OF FOOD A reduction in the levels of ingredients that are thought to be undesirable is only one way of adapting foods, including standardized foods, to promote a healthier population.
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From page 337... ...
Similarly, the minimum fat levels of cheeses could be reduced to the lowest level capable of maintaining the general characteristics of the product. Prohibiting or reducing ingredient levels in standardized foods is likely to arouse considerably more opposition than permitting or encouraging fortification would.
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From page 338... ...
As consumers become more sophisticated and as the agency looks to appropriate descriptors, it may be that the current regulation permitting the use of "reduced-calorie" in connection with the names of nonstandardized foods and, perhaps, some standardized foods should be reexamined. A reduction in calories can be accomplished in a number of ways, usually by reducing fat or carbohydrates, and it may be that the price that industry will have to pay for using standardized names should be disclosure of how the reduction in caloric content took place.
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From page 339... ...
Ad hoc decisionmaking is as dangerous to progress as an intentionally negative rule is. The issues raised by to question of the use of standardized names in nonstandardized foods create enough controversy and implicate enough different values that fairness dictates that it be adopted in a public setting conducive to aping and responding to all conflicting views.
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From page 340... ...
27. The prohibition against imitating a food without prominently labeling it as imitation applies to all foods, not just standardized foods.
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53. Comments of the Milk Industry Foundation and the International Ice Cream Association at 3, FDA Docket No.
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From page 342... ...
237, 248 (1989~. He argues that the Act contains sufficient discretion that the agency can permit the sale of modified standardized foods that are somehow not legal: '7he analysis suggested in this article does not suggest that honesdy labeled modifications of standardized foods must in all cases be within the law." It is hard to imagine how the statute could be interpreted in such a way that a truthful and nonmisleading food name would be unexceptional from an enforcement standpoint but illegal nonetheless.
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