Food Policy

The Problem With Federal Food-Labeling Laws

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

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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.

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  1. Food academic Marion Nestle

    What a name for a “food academic”. What the hell is a “food academic” anyhow? What makes regular people “food unacademic”?

    1. Do you have a degree in foodology? I didn’t think so.

      1. Hey, I’m a licensed babetician!

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  2. If they republished the same Linnekin food article every Saturday how many weeks would it be until someone noticed?

    1. I would. The alarums and scarums of those obsessed with ‘natural foods’ is amusing. This is sort of an update on who is panicked this week.

    2. If we get your comment next week, we will get my response also, and I will respond again. Each week will have one more comment. Will that be proof enough for you? If my additional comments cease, will you take that as evidence the food SWAT has rounded me up? Or if my additional comments continue, will you take that as proof that the NSA has expended into writing posts, not just reading them?

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  4. Perhaps most importantly, it would do so without having FDA or USDA bureaucrats define down our food choices.

    Not seeing how having government bureaucrats wearing black robes (aka “judges”) is much of an improvement. This is hardly leaving things up to the marketplace.

    1. Take two:

      Not seeing how having government bureaucrats wearing black robes (aka “judges”) “define down our food choices” is much of an improvement. This is hardly leaving things up to the marketplace.

  5. 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.

    Is this food natural? I never really thought about this until I saw “All Natural Soy Milk” in my wife’s best friend’s refrigerator.
    Where in nature do you find soy milk?

    1. the refrigerated case of the supermarket.

    2. “Where in nature do you find soy milk?”

      In the soybeans? That’s like asking where in nature you find a t-bone. Yea you have to cut or grind it out of something but it’s there.

      1. Zack, have you ever seen a wild animal soak a legume, grind it, remove it from its fiber, thicken it, then mix it with cane sugar (also removed from the fiber) and seaweed extract (not sure about seaweed and fiber)? Me neither.
        Certainly you have seen a carnivore ripping flesh from an animal’s body?

        1. I haven’t seen one season and grill a steak either, I guess my point is that soymilk and steak involve pretty basic/minimal processing. I think when people refer to unnatural they are refering to synthetic chemicals or heavy processing techniques, not mixing a bean with water. Even the heavy processing might be debatable as I’ve heard some animals ferment certain foods which I find pretty cool so idk.

          1. “Natural” is more of a social convention than a serious concept. Malaria’s natural, but nobody would call it good. That’s why the malarial swamps of what’s now Washington DC were drained.
            Petroleum is natural. It comes “from the good earth.”
            It’s an easy convention to get caught up in. And yes, I do it too.

            1. Agree with
              all that

    3. You could make soy milk yourself. It doesn’t require a lot of heavy processing.

      I will agree that store bought milk substitutes rarely use so few ingredients, and depending on brand are cut with other things or use carrageenan to give it a silkier texture. I’m on board with the carrageenan is safe crowd, but I know it’s still being fought out in the literature.

      1. Soy is nasty stuff. I mostly avoid it.

        1. I have to disagree after the sofritas burritos I just had from chipotle

          1. I’m not talking about taste.
            Soy reduces testosterone.

            There are a bunch of studies showing all sorts of problems. I have several just on breast cancer.

  6. where can I get some supernatural tortilla chips?

    1. Seven-Hell-Heaven convenience stores?

    2. Try eBay. Pretty sure I’ve seen listings from there for a whole grocery store’s worth of food items with miraculous images of Jesus, the Virgin Mary, or, who knows, probably the divine figure of your choice.

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  11. The FDA appears to have spent 10 years thinking about gluten-free labeling only inevitably to botch the final rule.

    Show hands, those who are surprised.

    That’s what I thought.

  12. The FDA kills,

    when you think about all the years they take deliberating on whether or not life saving drugs can reach the market, then they give themselves a circle jerk for finally releasing a “safe” product after thousands of peeps needlessly died.

    Everything…EVERYTHING..the govt does happens in Bastiat’s “Seen”, when unintended consequences crop out-“the unseen” gov and progtards start agitating for more seen, a society’s inability to reason properly is fucking lethal…its literally killing us. But lefty fucktards are too enamoured with 32 oz soda bans, trans fat hysteria, second hand smoke hysteria and bullshit click it or ticket laws that they can’t see that their policies are more dangerous.

    I’m getting sick of this shit

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  15. among the celiac disease community with the 20 ppm standard,”

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