This is a guest blog-post by  Professor Timothy D. Lytton

In my previous post, I suggested that regulation of front-of-package nutrition labels should begin with better enforcement of existing standards. Existing regulations, I argued, already provide adequate tools to clamp down on misleading labels. I focused on the three most common types of front-of-package nutrition labels: (1) those that provide simple quantitative statements, (2) those that rate individual nutrients, and (3) those that present seals of approval. In this post, I suggest how existing standards might be further developed to regulate a fourth type of front-of-package label.

Rating Overall Nutritional Value: Guiding Stars & NuVal

The fourth type of front-of-package nutrition label rates the overall nutritional value of foods. For example, Hannaford Brothers’ Guiding Stars label rates foods on a scale of zero to three stars and the NuVal Nutritional Scoring System rates foods on a scale from one to one hundred.

The FDA could build on its existing regulations concerning the use of “healthy” claims to develop multiple threshold definitions for overall nutritional value, for example providing three threshold definitions that would create a four-point scale: (1) foods below the bottom threshold, (2) foods between the bottom and middle thresholds, (3) foods between the middle and top thresholds, (4) and foods above the top threshold. This could be accomplished by adding further gradation to the current FDA definition of “healthy,” as the agency has already done for some single nutrient claims (for example, “low sodium,” “very low sodium,” and “sodium free.”).

Thus, food ratings in a scheme like Hannaford Brothers’ Guiding Stars would have to meet the corresponding FDA threshold definitions—a food labeled with three stars would have to meet the FDA’s top threshold definition, a food labeled with two stars would have to meet the FDA’s middle threshold definition, and so on. For schemes with a higher level of gradation, like NuVal’s one to one-hundred ranking, the FDA could use the same four-point scale. Foods rated by NuVal in the top quartile (100-76) would have to meet the FDA’s top threshold definition, foods in the NuVal second quartile (75-51) would have to meet the FDAs middle threshold definition, and so on. Calibrating nutrient profile rating schemes to graduated FDA definitions of relative overall nutritional value, using the definition of “healthy” as a starting point, would provide consistency among schemes based on the federal government’s dietary guidelines and health recommendations.

This means of regulation would also allow for variation among schemes in terms of gradation and rankings. Those who design nutrient profile labeling schemes could experiment with greater and lesser levels of gradation, and rankings could vary so long as they met or exceeded minimum FDA threshold levels. The purpose of my proposal to formulate a four-tiered definition of “healthy” is not to create an FDA nutrient profile rating system to displace private-sector rating systems like Guiding Stars or NuVal. The purpose is merely to provide an easily understandable system of minimum thresholds to prevent abuse. Thresholds should be set in such a way as to prevent high ratings for foods of low nutritional value—like Froot Loops—while allowing for variation in different approaches that are consistent with these minimum thresholds. This regulatory approach does not interfere with private sector efforts to develop more complex nutrient rating schemes, so long as those schemes satisfy minimum standards that prevent ratings that are false or misleading.

In a subsequent post, I will discuss why FDA imposition of a uniform, mandatory front-of-package labeling system—as proposed by the Center for Science in the Public Interest—might not be the best regulatory approach.

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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This is a guest blog-post by  Professor Timothy D. Lytton

At the top of the FDA’s agenda for 2010 is regulating front-of-package nutrition labels.

Proponents of symbols like the Heart Check mark and the Smart Choices logo and rating systems like Guiding Stars and NuVal argue that they offer a quick way to help consumers identify foods that contribute to a healthy diet. Critics allege that the labeling schemes are confusing and misleading and have called for stricter government regulation. The Center for Science and the Public Interest (CSPI) recently released a report advocating that the FDA to develop a uniform, mandatory front-of-package labeling system.

But before the FDA gets into the business of creating its own front-of-package labeling scheme, it should first consider how existing regulations could be used to clamp down on misleading front-of-package labeling information. Better use of existing regulations would be a prudent first step in reigning in the current front-of-package free-for-all.

The FDA has promulgated extensive regulations governing the use of nutrient content claims on food labels—claims describe the level of a nutrient in a food. FDA regulations distinguish several different categories of nutrient content claims, and most front-of-package nutrition labels fall into one of three categories.

1. Simple Quantitative Statements: The Nutrition Highlights Panel

Some front-of-package nutrition labels present nutrient information in the form of simple quantitative statements concerning the amount of one or more nutrients in the food. General Mills’ Nutrition Highlights panel is an example of this type of label.

Existing FDA regulations allow for simple quantitative statements provided that they are accurate.

2. Rating Individual Nutrients: The Traffic Light Label

A second type of front-of-package nutrition label rates the level of individual nutrients on a scale. The British Food Standards Agency (FSA) traffic light label provides an example.

Under FDA regulations, any label claim that employs descriptive terms to characterize the level of a nutrient, such as “low in sodium” or “high in fiber,” may be made only for nutrients for which FDA has established a Daily Value (DV), may be used only if the food meets specified threshold requirements for the nutrient, and may employ only descriptive terms approved by the FDA. For example, a tub of yoghurt labeled “high in calcium” must contain at least twenty percent of the DV of calcium per 225 grams of yoghurt. Any front-of-package label that rates individual nutrients must conform to these strict guidelines. (Note: A daily value for sugar has not been established by the FDA.)

3. Seals of Approval: The Heart Check Mark & The Smart Choices Logo

A third type of front-of-package nutrition label combines analysis of nutrients to suggest that a food satisfies some minimum standard of overall nutritional value, such that it contributes to a healthy diet. The American Heart Association (AHA) Heart Check mark is an example.

The AHA explains on its website that the underlying nutrient criteria for the label are based on the Association’s dietary recommendations which it explains are consistent with federal dietary guidelines and health recommendations. The mark is intended to convey that a food is of high nutritional value by these standards.

Symbols like the Heart Check mark are functionally equivalent to label claims that a food is “healthy.” Under FDA regulations, foods labeled “healthy,” or any derivative of the term such as “healthier” or “healthful,” must not exceed specific thresholds of fat, saturated fat, sodium, and cholesterol and must contain requisite amounts of other nutrients such as vitamin A, vitamin C, calcium, iron, protein, and fiber, depending upon the food. “[T]he purpose of the ‘healthy’ claim,” explains the FDA, “is to highlight those foods that, based on their nutrient levels, are particularly useful in constructing a diet that conforms to current dietary guidelines.” This is precisely what symbols like the Heart Check mark are intended to convey, and this is how consumers understand them. They should, therefore, be required to meet FDA standards for “healthy” claims.

Some front-of-package nutrition labels place symbols of approval on products within a food category that have comparatively better overall nutritional value, although they may be foods of low nutritional value. The symbol is meant to indicate not that a food is healthy in the absolute sense but merely healthier in a relative sense. For example, the Smart Choices logo has appeared on cereals such as Cocoa Krispies and Froot Loops based on their relatively lower sugar content when compared to other highly-sweetened children’s cereals.

FDA regulations prohibit this type of relative healthy claim, explaining that,

“[t]he usefulness of a food labeled ‘healthy’ is not based on how it compares to a similar food, but on how it contributes to achieving a total diet consistent with dietary recommendations.”

Foods that are healthy only in a relative sense do not contribute to a total diet consistent with dietary recommendations and are, therefore, misleading. Under existing FDA regulations, front-of-package labeling schemes that make this type of relative “healthier” claim should be prohibited.

In a subsequent post, I will address how the FDA could further develop its regulations governing the use of healthy claims to regulate more complex front-of-package labels that rate the overall nutritional value of foods.

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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The Smart Choices food label program launched this weekend at the American Dietetic Association’s annual Food and Nutrition Conference and Expo. In a previous post, we briefly outlined the history of food regulation and labeling.

Today we’ll explain the background for Smart Choices, what it’s doing right, and where it can improve.

Background:
Starting with the Nutrition Labeling and Education Act in 1990 (NLEA), The USDA and FDA have required food manufacturers to disclose the following information on their food packaging: ingredient list, allergy warnings, and nutrient information. The information must be displayed in a uniform standardized manner. In return for this effort, manufacturers were allowed to publish health claims prominently on the front of the product package.

Consumers embraced the nutrition information that became available, and began making more educated purchase decisions. However, many became confused with the information overflow. Cryptic ingredient names and Daily Value calculations presented new challenges to shoppers. If the FDA hoped through nutrition labels to encourage a healthier consumer, quite the opposite transpired in the past two decades, as obesity rates and diet related illnesses have shot up .

So recently, manufacturers stepped up individually to the challenge, and began offering their consumers healthy choices within their product families. Several manufacturers launched marketing campaigns promoting their “better for you” brands. In 2004, PespiCo introduced SmartSpot seals on some of its reduced fat/sugar/sodium products. In 2005 Kraft launched a similar Sensible Solutions, and several other manufacturers followed suit. And then there’s the American Heart Association Heart Check Seal.

However, all these programs have added to, not decreased, the public’s confusion over what to buy and eat. Consumer groups have called upon the FDA to step in and create a uniform benchmark for all food manufacturers that will become a standard for front of package nutrition information. To date, the FDA has not. This is where the not-for-profit Keystone Center stepped in and helped bring together industry leaders and academic nutrition experts to find a solution. Sensing that if the food industry doesn’t figure out a way to handle front of package label standardization, the FDA will, rival manufacturers finally banded together to self-regulate and create a single “Smart Choices” standard.

Smart Choices includes a BIG GREEN CHECKMARK for eligible foods, as well as calorie count and number of servings in the package. A product can display the seal only if it meets all the required nutrition criteria as defined by the “Smart Choices” roundtable. Several industry titans have stated they will be in the program, set to roll out mid-2009, including Unilever, Kraft, General Mills, Coca-Cola, PepsiCo, Kellogg’s, and Wal-Mart.

Why Smart Choice is good:

1. Simplicity. Consumers get a quick answer to their question “is this food healthy?”

2. Uniformity. assuming all manufacturers join in, “Smart Choices” creates a uniform language in the supermarket and lets consumers quickly identify the less fattening products.

3. Calories. By presenting calories upfront, people immediately get the most important data point without having to search for it in small print on the nutrition label in the side or back panel.

How could Smart Choices be better:

1. Self regulation doesn’t work. Just look where it has gotten our financial system recently. It’s really simple to explain: Food manufacturers need to show growing profits. to do that, they need to sell us more food, not less. To sell more food, we need to buy more products. We’ll buy more products that we beleive are good for us. Therefore, manufacturers would like as many products as possible to be eligible for a Smart Choice seal. Thus, they will not adopt a benchmark that is too stringent. As Michael F. Jacobsen, executive director of nonprofit Center for Science in the Public Interest writes: “A disinterested funder and committee of experts free of conflicts of interest likely would have rated the healthfulness of foods differently from the ‘better for you’ Smart Choices Program adopted by the roundtable.”

2. Not really a standard. Not all food manufacturers and retailers will join. There are competing industry standards vying for the same success. Guiding Stars has been in use at Hannaford Brothers Supermarkets for the last 2 years. NuVal has just launched at Hy-vee.

3. “Worse for you”. Systems such as UK’s Traffic Lights point out the bad, not just the good in a product.  A product which is low in sugar but high in saturated fat will get a “green light” for sugar, but a “red light” for the fat. The consumer gets a better picture.  A benchmark system such as Smart Choices does not point out products that may be “worse for you”, full of sodium, sugar, and fat. No sane marketer would ever want something negative to be prominently displayed on her products. It only happens when the government thinks it’s important. Just look at the long fought battle of the cigarette industry with the FDA until cigarettes/cancer messages were placed on every pack. That will probably not happen with food, not even the lowliest junk food.

4. Black and white in a gray world. The Yes/No message dichotomy oversimplifies food to a point of being ineffective. If you’re standing in front of a supermarket shelf and have to choose between two similar spaghetti sauces, both with a Smart Choices seal, which is better? What about two frozen pizzas without a seal? The NuVal system (not perfect either) grades each product from 1-100, giving consumers a much better picture of each product’s relative and absolute “nutrition value”.

5. Lenient Criteria. Some of the criteria chosen by the food industry seem a bit too lenient. For example, 12 grams of sugar per serving is more than 2 teaspoons worth. Yet a sugary breakfast cereal toting this amount is a Smart Choice, as it is fortified with vitamins and minerals.

6. Different strokes for different folks. A middle aged diabetic has different dietary needs than a healthy teenager or a senior suffering from hypertension and trying to reduce sodium intake. How can the same exact products be “better for” all of them?

Conclusion:

“Smart Choices” will not solve our obesity epidemic. But it does attempt to give some guidance. Not all the problems we pointed to can be addressed immediately, but at least there are advances in the right  direction. Hopefully consumers will use the information provided to them and start making better decisions.
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