Article by Diana R. H. Winters
This Article examines the failures of the Nutrition Labeling and Education Act of 1990 (NLEA) and argues for its partial repeal. The NLEA was intended to improve the quality of information available to consumers about the food they bought and ate. At the time of its passage, awareness of the association between diet and health was increasing, and clear and accurate information about food was seen as a critical but simple way to provide people the opportunity to improve their health through nutrition. The NLEA has two parts. First, it mandates disclosure of certain nutrition facts—this includes the “Nutrition Facts” box that consumers have become used to seeing on packaged food. Second, it regulates claims made about how nutrients in the food affect human health (called “health claims” and “nutrient content claims”) to ensure that such claims are based on scientific information. While the first part has succeeded in providing consumers with the required information, the second part has failed. Health claims on food are no more trustworthy than they were before the NLEA was passed and may actually be less so. Indeed, health outcomes directly related to nutrition have worsened dramatically since 1990.
The NLEA is ineffective and inefficient. The information available to consumers, even when presented in a manner compliant with the NLEA, is confusing and opaque. The Act and its regulations contain gaps that undermine the entire scheme. The amount of litigation regarding food labeling has increased, resulting in conflicting rulings regarding the continued vitality of state law in this arena. Moreover, the regulatory strategy of mandated information disclosure is itself weak. Even if the statute was perfectly written, so as to ensure that only claims supported by the best and most current scientific information were available to consumers, it is not certain whether the provision of clear and accurate nutritional information to consumers would actually be a factor in improving health.
The Article advocates for the repeal of the health and nutrient content claims provisions of the NLEA. True policy improvement in the food labeling scheme will not come about through incremental improvements to the NLEA’s health and nutrient content claims provisions. This problem should be dealt with by the states.
89 Tul. L. Rev. 815 (2015)