The Problem With Federal Food-Labeling Laws

Why markets are superior to government mandates when it comes to food labeling.

Since I wrote a column focusing on the increasing ubiquity and success of private food labeling in June, a series of important federal food labeling issues have made headlines. Not surprisingly, the government's actions are mostly rife with drawbacks.

Just this month, the FDA published a final rule on gluten-free labeling. People with celiac disease must avoid gluten. For a variety of reasons, many others choose to avoid it.

Food academic Marion Nestle, who posted a useful timeline of the FDA's gluten-free saga at her website, says the fact it took the agency "nine years getting to this point" is an "[i]mpressive" feat.

Unlike Nestle, I'm not so sure this decade of deliberation is any cause for celebration. Others agree. The label rule is already drawing fire.

In an article headlined "Will an Food and Drug Administration (FDA) Rule Make People Sick?", attorney Seth Mailhot wonders whether the FDA has crafted a final rule that might harm the very people it was intended to help.

"One of the key complaints among the celiac disease community with the 20 ppm standard," the maximum parts per million of gluten that a product labeled "gluten free" may contain under the rules the FDA established this week, Mailhot writes, "is that even at this threshold, the amount of gluten adds up quickly."

And that means products labeled as "gluten free" under the new rules can still sicken people with celiac disease.

What this likely means is that the label will serve as a gold standard for people who choose not to eat gluten, but will be a relatively worthless tool for those who mustn't consume gluten.

What this definitely means is that whatever "gluten free" labels meant prior to the rule, they no longer mean "gluten free" thanks to the FDA's careful and lengthy deliberation.

There is a small upside to the FDA's final rule. I suspect the market that caters to those with celiac disease will react to this either by listing gluten ppm on packaging (which some products already do) or by encouraging more companies to undergo their private certification process—a non-governmental solution to labeling that I applauded as recently as my aforementioned June column—in order to earn a more meaningful gluten-free seal.

Unlike gluten-free labeling, another recent development in federal oversight over food labeling doesn't require any search for a silver lining. The USDA recently approved the use of a voluntary "non-GMO" label on meats that were raised on a GMO-free diet.

Under existing USDA policy, reported the Chicago Tribune's Monica Eng, "U.S. meat producers were not allowed to use such claims, even if their accuracy had been certified by a third party."

The earlier approach by the USDA was ridiculous. I welcome the change. The FDA, which often barred makers of GMO-free foods from touting their products as such—for which I had long blasted the agency—also appears to have reversed course. Bravo on both counts.

The third and final recent federal labeling issue concerns several lawsuits over the meaning of the term "natural," which the FDA doesn't define currently. A slew of cases have asked courts to penalize food manufacturers who employ the term.

For example, in one ongoing case, a plaintiff sued Chobani, the maker of a popular Greek yogurt, claiming in part that the maker's yogurt products were mislabeled because they state the yogurt is "all natural" even though it contains coloring made from fruits and vegetables.

In another case, the maker of Mission tortilla chips has been sued over its "all natural" claims on bags of its chips, which contain GMO corn.

But rather than rule on the merits of Mission's claim or the plaintiff's arguments, U.S. District Court Judge Yvonne Gonzalez Rogers gave the FDA six months to make "an administrative determination[ on] the question of whether and under what circumstances food products containing ingredients produced using bioengineered seed may or may not be labeled" as "all natural."

Mission's attorneys and others who represents clients facing similar "all natural" suits appear pleased with the ruling. Others are skeptical the judge's order will amount to much.

But I'm wary of both the happy attorneys and the grumpy skeptics (who also happen to be attorneys).

The FDA appears to have spent 10 years thinking about gluten-free labeling only inevitably to botch the final rule. Meanwhile, USDA and FDA decisions to allow producers the freedom to tout their products with GMO-free labeling are highly positive developments.

What should federal regulators learn from these differnt approaches? If the gluten-free saga is any guide, an FDA ruling on "all natural" food labeling would likely take another decade and leave consumers no better off.

Instead, as I wrote last fall, the federal government should "[o]pen up all food labels to any and all statements that aren't demonstrably false."

What's demonstrably false? As with claims of fraud, that's a question for courts to decide.

Certainly, this approach wouldn't immediately stem the spate of lawsuits like the "all natural" one before Judge Rogers. But it would help establish some precedent upon which to decide future cases. Perhaps most importantly, it would do so without having FDA or USDA bureaucrats define down our food choices. By any label, that's a worthwhile approach.