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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The new year has ushered in a blizzard of new food labeling systems aimed at helping consumers make healthier choices at the supermarket. This week it is Supervalu, which kicked off nutritionIQ at its California Albertsons stores.

The color-coded, easy-to-spot shelf tags, or cards, are supposed to aid shoppers in choosing low fat, high fiber and other good foods. From the SuperValu press release:

The program covers 11 different nutrient claims in seven categories with the shelf tags color-coded as follows:
• excellent or good source of fiber are denoted by orange tags,
• excellent or good source of calcium by blue tags,
• excellent or good source of protein by yellow tags,
• low or healthier level of sodium by dark green tags,
• low calorie by a purple tag,
• low saturated fat by a red tag and
• whole grains by a dark orange tag.

read the full press release…

It seems that in the last few months, simplifying food labels has become a must for all grocery chains and manufacturers. NuVal, GDA, Nutritional Spotlight, and Smart Choices are recent examples. For more details, read our history of product nutrition labeling. While easy to understand nutrition information is to be commended, consumers may become befuddled by the tower of nutritional babel.

The new system has been developed in cooperation with Joslin Clinic, part of an academic medical center affiliated with Harvard Medical School.

What you need to know:

Supervalu should be commended for taking this first step, showcasing the more nutritious foods in the supermarket. But will they also place signs on foods that are really not nutritious? Don’t hold your breath.

As a supermarket that needs to sell more, not less products, don’t expect Albertson’s to post NutritionIQ signage with negative nutritional information. In fact, Supervalu does not even plan to apply the benchmarks to snacks or beverages, where there is no chance to find nutrition.

What to do at the supermarket:

Although nutritionIQ tags simplify things for shoppers, always check the nutrition label as well to learn about the nutrients to limit. Many times low-fat means high in sugar. But the tag won’t necessarily tell you that.

In general, it’s best to select products with short ingredient lists. Unprocessed foods are easy to find at the supermarket. Just stick to the perimeter of the store, where you will find fresh fruit and vegetables, whole grains, low fat dairy and low fat cuts of meat.

Don’t be let simplifications created by the supermarket or a munufacturer catch you off guard. Remember, they want you to buy more, not less.

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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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Updated: October  2009. Original version published in November 2008.

In the early 13th century, the king of England proclaimed the first food regulatory law, the Assize of Bread, which prohibited bakers from mixing ground peas and beans into bread dough. Ever since, it has been a cat and mouse game between the food industry and the public (fast forward to China 2008 – cheap poisonous melamine in milk powder). In the US, food regulation dates back to early colonial times. Here is a brief overview of the last 150 years of government and industry food regulation:

1862 President Lincoln launches the Department of Agriculture and the Bureau of Chemistry, the predecessor of the Food and Drug Administration.

1906 The original Food and Drugs Act is passed. It prohibits interstate commerce in mis-branded and adulterated foods, drinks and drugs.

1906 In the aftermath of “The Jungle” by Upton Sinclair, which detailed the horrendous sanitary and working conditions in the meatpacking industry, the Meat Inspection Act is passed.

1924 The Supreme Court rules that the Food and Drugs Act condemns every statement, design, or device on a product’s label that may mislead or deceive, even if technically true.

1938 A revised and expanded Federal Food, Drug, and Cosmetic (FDC) Act of 1938 is passed. Highlights include: safe tolerances to be set for unavoidable poisonous substances, standards of identity, quality, and fill-of-container to be set for foods, and authorization of factory inspections.

1939 First Food Standards issued (for canned tomatoes, tomato purée, and tomato paste).

1949 FDA publishes guidance to industry for the first time, called “Procedures for the Appraisal of the Toxicity of Chemicals in Food,” (aka the “black book”)

1950 Oleomargarine Act requires prominent labeling of colored oleomargarine, to distinguish it from butter. (Yes, swindlers tried to sell folks cheap margarine in the guise of butter.)

1958 Food Additives Amendment enacted, requiring manufacturers of new food additives to establish safety. Going forward, manufacturers were required to declare all additives in a product.

1958 FDA publishes the first list of food substances generally recognized as safe (GRAS).

1962 President Kennedy proclaims the Consumer Bill of Rights. Included are the right to safety, the right to be informed, the right to choose, and the right to be heard.

1965 Fair Packaging and Labeling Act requires all consumer products in interstate commerce to be honestly and informatively labeled, including food.

1971 Artificial sweetener saccharin, included in FDA’s original GRAS (generally recognized as safe) list, is removed from the list pending new scientific study.

1973 California Certified Organic Farmers (CCOF) is formed. Begins with 54 farmers mutually certifying each other’s adherence to its own published, publicly available standards for defining organic produce.

1977 Bowing to industry pressure, the Saccharin Study and Labeling Act is passed by Congress to stop the FDA from banning the chemical sweetener. The act does require a label warning that saccharin has been found to cause cancer in laboratory animals.

1980 Infant Formula Act establishes special FDA controls to ensure necessary nutritional content and safety.

1980 The USDA Food and Nutrition Information Center (FNIC) publishes the 1980 Dietary Guidelines for Americans. The guidelines are to be updated every 5 years. In 1980 there were 7 relatively simple guidelines. In the 2005 Dietary Guidelines for Americans, there were 41 recommendations in a 71 page booklet!!!

1982 FDA publishes first “red book” (successor to 1949 “black book”), officially known as “Toxicological Principles for the Safety Assessment of Direct Food Additives and Color Additives Used in Food”.

1990 Nutrition Labeling and Education Act (NLEA) is passed.  It requires all packaged foods to bear nutrition labeling and all health claims for foods to be consistent with terms defined by the Secretary of Health and Human Services. As a concession to food manufacturers, the FDA authorizes some health claims for foods. The food ingredient panel, serving sizes, and terms such as “low fat” and “light” are standardized. This is pretty much the nutrition label as we know it today.

1991 Nutrition facts, basic per-serving nutritional information, are required on foods under the Nutrition Labeling and Education Act of 1990. Food labels are to list the most important nutrients in an easy-to-follow format.

1995 Saccharin Notice Repeal Act repeals the saccharin notice requirements of 1977. People can get their saccharin without having to read about its risks.

1995 American Heart Association initiates a food certification program including AHA’s Heart Check Symbol to appear on certain foods.  Criteria is simple – low in saturated fat and cholesterol for healthy people over age 2. Oh and also, a certification payment to AHA by the food manufacturer. Now you know why sugary cereal is Heart Checked.

1998 Transfair, the US Fair Trade organization is established, with a mission “to build a more equitable and sustainable model of international trade that benefits producers, consumers, industry and the earth”.

2002 The 2002 Farm Bill requires retailers provide country-of-origin (COOL) labeling for fresh beef, pork, and lamb. After repeated debilitation and stakeholder pressures, the law would finally go into effect only 6 years later, on Oct 1, 2008, and even then with many loopholes.

2002 The National Organic Program (NOP),  enacted. It restricts the use of the term “organic” to certified organic producers. Certification is handled by state, non-profit and private agencies that have been approved by the US Department of Agriculture (USDA).

2003 Announcement made that FDA will require food labels to include trans fat content. Labeling went into effect in 2006.

2003 The FDA announced plans to permit the manufacturers of food products sold in the United States to make health claims on food labels which are supported by less than conclusive evidence. From “significant scientific consensus” before a claim can be made, industry can now rely on “Some scientific evidence” or “Very limited and preliminary scientific research” to make a health claim. Opponents criticize it as opening the door to ill-founded claims. Advocates believe it will make more information available to the public.

2004 Passage of the Food Allergy Labeling and Consumer Protection Act. Requires labeling of any food that contains one or more of: peanuts, soybeans, cow’s milk, eggs, fish, crustacean shellfish, tree nuts, and wheat.

2004 PepsiCo launches Smartspot – designating the “more nutritious” of its products with an easy to spot symbol on the front of package. Baked Doritos in. Fried Doritos out.

2005 Kraft launches Sensible Solutions, a similar initiative for its gamut of products including sugar-free Jello, vitamin water, and Nabisco toasted chips.

2005 President’s Choice launches Blue Menu to designate its healthier products.

2006 Hannaford Brothers Supermarket Chain launches Guiding Stars intended to help customers choose healthy foods. Foods are ranked 0 to 3 stars, with three stars awarded to most nutritious foods. Only 20% of the supermarket stocked items are starred, but sales of these items increase by several percentage points.

Sept 2008 NuVal announced – The nutritional value (NuVal) System scores food on a scale of 1 to 100. The higher the NuVal Score, the higher the nutrition of a food product. The score is based on a complex and *top secret* Overall Nutritional Quality Index (ONQI) that takes into account 30 different nutrients in food. [update: read review]

Oct 2007 Kellogg’s Launches Nutrition at a Glance based on the European Guideline Daily Amounts (GDA) system. Front of Package information includes daily percentage values for 6 nutrients: calories, total fat, sodium, sugars, vitamin A, and vitamin C.

Oct 2008 Mars International launches GDA labeling of its foods and snacks in the US.

Oct 2008 Smart Choices launched – a pan industry effort to promote a standardized benchmark for front of package consumer information. Initial supporters include General Mills, Con-Agra, Coca-Cola, PepsiCo, and Unilever. [update: read review]

January 2009 Healthy Ideas launched at Giant Foods and  Stop & Shop supermarkets. Around 10% of the items qualify for this benchmark, developed by the grocers’ nutrition experts and based on FDA and USDA guidelines.

January 2009 Sara Lee introduces Nutritional Spotlight front of package labels for bread, bun, and bagel products. This move is in contrast to an industry wide attempt by manufacturers to create a unified Smart Choice label. This label is similar to Mars’ and Kelloggs’ recent efforts.

January 2009 SuperValu introduces nutritionIQ shelf signage at its Albertsons stores. The color-coded, easy-to-spot shelf tags, or cards, are supposed to aid shoppers in choosing low fat, high fiber and other good foods.

January 2009 Regional Grocery Chain, United Supermarkets, Introduces TAG Nutrition Labeling Program. Five color coded shelf labels point to Heart Healthy/Diabetes Management, Gluten-Free, Organic, Lean/Low-Fat for Meat and Dairy and Sugar-Free/Reduced Sugar products.

June 2009 – SuperValu introduces Healthy Elements program for its independent retail partners.

Summer 2009 – Smart Choices launches formally with several hundreds of products labeled with the green check mark. Froot Loops becomes the poster child for everything wrong with an industry backed nutrition rating system.

October 2009 – The FDA sends a “Dear Manufacturer” letter to boards of the Smart Choices Program and other Front of Pack nutrition rating systems, stating its concern with the potential to mislead consumers. A week later the Smart Choices program suspends itself.
What’s next for food labels? Consumers interest groups will continue to demand more visibility and more information from manufacturers. More data will become available, but translating the wealth of information to a decision at the supermarket shelf will not necessarily become easier for consumers. Programs such as Guiding Stars and NuVal may help consumers make better decisions, but with the FDA’s renewed interest and vigor, perhaps we shall see a uniform, standardized format on all products in the not too distant future.

Visionaries see a day where each ingredient of every product on a shelf can be connected directly to the farm, factory, and other stakeholders involved in its processing. Now how do you fit all that information on a pack of gum?

Sources: FDA, USDA, AHA, company and organization websites

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