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 Act 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 mandated 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 Act 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 were 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 claim 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.Revision of the statute, more vigorous enforcement, better practice within industry and a wariness regarding the potential for regulatory arbitrage might of course be more effective.
'How Reliance on the Private Enforcement of Public Regulatory Programs Undermines Food Safety in the United States: The Case of Needled Meat' by Winters in (2013) 65(2) Maine Law Review considers meat labelling, commenting
“Mechanical tenderization,” or “blade tenderization,” or “needling,” or “hammering,” is a process where tiny cuts are made in beef by needles or blades, which cut the connective tissue and immediately tenderize the meat. When meat is mechanically tenderized, it becomes more susceptible to contamination by pathogens that cause foodborne illness because the needles can carry bacteria, such as E. coli, into the interior of the meat, where it is harder to kill by cooking. After more than a decade of documented foodborne illness outbreaks related to mechanically tenderized meat and repeated calls by consumer advocates for the labeling of such meat, it appears that the Department of Agriculture is finally poised to begin requiring the labeling of needled meat.
The regulatory history of mechanically tenderized meat is a window into a much larger issue, that of regulatory inertia and the inadequacy of existing mechanisms to counter this stasis. This regulatory inertia is the subject of this Paper, and it does not have a simple cause, nor is it amenable to a simple solution. It cannot be reduced to a problem of agency capture, or a problem with agency incompetence.
Telling the story of the ongoing conversation on mechanically tenderized meat among the United States Department of Agriculture (USDA), the meat production industry, and interest groups representing the consuming public is important for at least two reasons. First, the focus on a food safety problem that is not well known to the public illustrates the commonplace nature of regulatory inertia, demonstrating that such cases are not confined to high-profile issues with elusive solutions.
Second, this story demonstrates the ineffectual nature of private enforcement. Private enforcement, in the form of agency-forcing suits, should act as a counterpoint to agency delay and dysfunction, by subjecting agency action to judicial review. We expect the judiciary to oversee the process of regulatory fermentation, and to ensure that an agency makes its decisions in a timely, appropriate manner. Here, however, government, industry, and advocacy groups representing the consuming public have been discussing this issue for a decade while individuals continue to get sick.
There is no simple solution to this problem, although I suggest several in the Paper. First, Congress should increase its use of statutory hammers. Hammers are legislative mechanisms that impose consequences on an agency that fails to act in compliance with a statutory mandate.
Second, as suggested by other scholars, interest groups, including both regulated industry and those representing the consuming public should be able to petition the Office of Information and Regulatory Affairs (OIRA), within the Office of Management and Budget, to review agency inaction. Simply put, OIRA, which provides centralized review to certain major regulations to assess compliance with cost-benefit principles, is theoretically positioned to assume a larger role in reviewing agency inaction.
