Food source labeling is confusing to consumers
The current labeling practices allowed by the FDA and to a smaller extent the USDA are a disaster for consumers looking to understand how to shop responsibly and eat healthy. To start, many labels have unclear meanings.
For example, what exactly does the label “natural” mean? The FDA, which regulates 80% of food products including dairy, seafood, and produce, lacks a formal definition and has a vague policy that it means nothing artificial or synthetic has been added. For the USDA, which regulates meat, poultry, and eggs, natural means without artificial ingredients or added color and only minimally processed.
Neither agency verifies the claims, and when considering the broad range of products that natural could be applied to, especially with contention over what constitutes artificial, the clarity of the term breaks down.
For confused consumers, according to a Consumer Reports study, two thirds thought the claim pertained to additional areas such as hormones, pesticides, or GMOs. The consumers aren’t the only confused party; federal courts have repeatedly requested the FDA provide a clearer definition to help resolve litigation.
Other labels such as pure, sustainable, and humanely raised are just as open for broad interpretation. With such confusion surrounding these labels, agencies are sorely belated in removing them from packaging.
Health claims deceive consumers
Misleading health claims allowed by the FDA are even more concerning. Products are often labeled with what they do not have to imply healthfulness and superiority to competitors.
Consumers purchasing a no sugar added juice may be inclined to believe that there is little sugar or calories in the product, when in fact the opposite is true. Junk food products have started advertising specific “healthy” portions of their nutritional label such as Baby Ruth candy bars having “4 grams of protein!”
Outdated FDA guidelines have set a restriction on healthy claims allowed on products with above certain levels of total fat, saturated fat, cholesterol, and sodium, but no such restriction is in place for amounts of trans fat or sugar added.
Even if a product exceeds these amounts for the other nutrients, however, a company can still include health claims on labels by just including “See nutrition information for [subject nutrient] content” after the claim. As a result, essentially all food can make some claim to healthiness.
To further muddle healthy labeling, customers can perceive sourcing and content labels such as natural to indicate healthfulness, even on known unhealthy products. A study published this year in Nicotine & Tobacco Research showed that claims of “organic,” “natural,” or “additive-free” made even cigarettes seem less harmful to consumers.
FDA regulation and enforcement needs to change
The FDA’s process for regulation is sorely in need of restructuring. Unlike the USDA, which reviews all labels before allowing them to be published, the FDA is structured on voluntary compliance. It provides a set of guidelines and companies publish labels on their own, without prior review by the agency.
Mindbogglingly, the FDA as structured has no ability to leverage fines or recall food products for false claims that companies put out, only for food safety issues. Instead, the agency only has the power to send warning letters to companies about false labels and adjust guidelines.
Unsurprisingly, the system is proving to be ineffective. Companies have realized there is scant danger from mislabeling, evidenced by the skyrocketing number of food labeling cases in litigation (19 in 2008, 425 active between 2015 and 2016) as consumers and competitors attempt to enforce guidelines in court. While cases are in litigation, products often remain on the shelves.
Changes are called for. Congress needs to restructure the FDA to allow penalties to be implemented for food labeling violation. Next, the FDA needs to switch to a preapproval process for labeling similar to what the USDA and the EU utilize. Every food label should be reviewed before it reaches the supermarket.
Finally, agencies need to be more aggressive and utilize the court rulings that that false, deceptive, and misleading commercial speech is not protected by the First Amendment to combat misleading claims.