All About/Product Labeling; After Years of Deregulation, a New Push to Inform the Public
By BARBARA PRESLEY NOBLE
Published: October 27, 1991
It all seems so simple: Label a product so consumers know what's in it or whether it has any hidden dangers. And yet the labels on products, many involved in the labeling process agree, are so opaque or confusing that only consumers with the hermeneutic abilities of a Talmudic scholar can peel back the encoded layers of meaning.
That is because labels spring not from disinterested scientific reasoning but from lobbying, negotiation and compromise. Advocates from the hundreds of businesses, industry and consumer groups, government agencies and scientific organizations with an interest in food, alcohol, tobacco, pesticides, or any of the other products that require labels are involved in the process.
For most of the last decade the agencies that label -- among them, the Food and Drug Administration, Federal Trade Commission and Agriculture Department -- were firmly guided by the gospel of deregulation. But the influence of those determined to free government's grip on private industry appears to be fading and the pendulum is swinging back.
The Surgeon General's Office, for example, is leading an inter-agency task force on revising alcoholic beverage warning labels. The F.D.A. has clamped down on what it calls unsupportable claims by liquid-diet makers. And it has gotten an infusion of energy from its new chief, who has moved aggressively against food companies making false or misleading claims on labels. The F.D.A. at Work Defining 'Natural,' 'Fresh' and 'Organic'
Nowhere is the revived spirit of government oversight more in evidence than at the F.D.A., where David A. Kessler, the agency's head, is trying to bring harmony to the chaos of nutritional and health claims dangled in front of consumers whenever they pick up a box of cereal or bottle of mouthwash.
Dr. Kessler, a physician, lawyer and policy expert has indicated that he intends to rein in the proliferation of claims by defining terms like "fresh," "natural" and "organic," which now have no technical meaning but great appeal to health-conscious shoppers.
The biggest impact of Dr. Kessler's leadership may be in the most basic area: nutrition labels. By law, labels now must contain such information as serving size, number of servings, calories and sodium content. But consumer and nutrition groups have long complained that the guidelines allow for plenty of confusion. "Consumers have to be mind readers, linguists or scientists to read a label," said Bruce Silverglade, legal director of the Center for Science in the Public Interest.
Serving size is a particularly fungible notion. The famous "just one calorie" in a can of Diet Coca Cola, for example, actually refers to one serving of Diet Coke. The standard can actually has two servings.
The issue is complicated by the fact that the F.D.A. and Agriculture Department regulate food: the F.D.A. handles products with less than 2 percent meat and poultry; the Agriculture Department handles other meat and poultry products. That means cheese pizza is covered by the F.D.A. and pepperoni pizza by the Agriculture Department.
The F.D.A., partly on its own steam and partly with a push from the Nutritional Education and Labeling Act of 1990, is now testing new label formats that present information in such a way that consumers can quickly discern, say, how much fat -- the ingredient of most concern, according to research by the Food Marketing Institute -- is present. The Agriculture Department, which is not covered by the 1990 measure, is also working on new labels. Both consumers and industry hope for compatible labels.
Re-labeling in the food industry could cost $600 million, industry analysts say. That is pennies, or less, for each item sold in a $300 billion to $400 billion industry. Some in the food industry say the cost will be higher. Cigarette Warnings A Legal Shield For Manufacturers?
In January 1966, when the pithy phrase "Caution: Cigarette smoking may be hazardous to your health" began appearing on cigarette labels, it was regarded as a victory for science and the common citizen. Ironically, the warning may become a shield for the $40.9 billion cigarette industry. In the last decade or so, the label has become part of a defense against suits by smokers and former smokers. Earlier this month, the Supreme Court heard arguments in the case brought by the family of Rose Cipollone, a New Jersey woman who died, apparently of lung cancer, after smoking for four decades.
The arguments, which the Supreme Court heard earlier this month, concern not labeling per se, but who sets the rules -- the Federal Government or the states. The cigarette companies argue that the Federal Cigarette Labeling and Advertising Act, which sets out what companies must do to warn the public about cigarette safety and health issues, pre-empts attempts by states to impose additional requirements. A handful of state-level verdicts in favor of smoker-plaintiffs apparently persuaded the tobacco companies to let the case go to the Supreme Court.
"They're saying 'it doesn't matter what the state law says; we can't be sued,' " said Arthur Bryant, executive director of Trial Lawyers for Public Justice, a Washington-based group that filed an amicus brief against pre-emption in the Cipollone case.