The Magical Thinking of Food Labeling: The NLEA as a Failed Statute

Abstract

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, but it is ineffective and inefficient. At the time of the Act’s 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 information available to consumers, however, is confusing and opaque — even when presented in a manner compliant with the NLEA. The Act has two parts. First, it mandates disclosure of certain nutrition facts. These include 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. While one of the goals of the NLEA was to foster uniformity in food labeling regulation, the amount of litigation regarding food labeling has increased, resulting in conflicting rulings regarding the continued vitality of state law in this arena. This confusion has diminished the valuable role that state law can, and was intended to play 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.