Cross-posted by Forbes.com at On The Docket
Back in February, we applauded the food and beverage industry’s proactive move to create uniform standards for “front-of-package” (FOP) labeling with its “Nutrition Keys” program. We also noted the predictable opposition of nanny-state activists and academics who cringed at the non-governmental standard setting and assertion of commercial free speech rights. One of those naysayers has now gone from being quoted in various media outlets to expressing his views in the once-venerable New England Journal of Medicine (NEJM) (hat tip to FDA Law Blog for flagging this).
“Front-of-Package Nutrition Labeling — An Abuse of Trust by the Food Industry?” appears in the June 22 issue of the NEJM. Authors Kelly Brownell of Yale and Dr. Jeffrey Koplan of Emory (and former Centers for Disease Control Director) launch a vigorous assault on the Nutrition Keys program and the food and beverage industries in general. As any good professional activist would, they self-rightously stand in the shoes of consumers to decry how food companies have violated our “trust” by taking action while government dithers along studying the issue. What’s trust got to do with it if companies band together and agree to one approach? It’s also not clear how, as Brownell and Koplan argue, the Nutrition Keys could “preempt the imposition of an alternative system.” If government wants to mandate standards, industry’s voluntary actions won’t stop it.
The food and beverage industries’ true transgression, it seems, was in not embracing Brownell and Koplan’s ideas for FOP labeling. What would they prefer? –Scarlett Letter-like traffic lights which through their stark images will stigmatize foods and drinks. What do such stop, caution, and go symbols tell consumers? Always eat this? Don’t ever eat that? Even the Food and Drug Administration has resisted this approach.
Ironically, the NEJM diatribe came out around the same time as two U.S. Supreme Court rulings which touch upon two issues raised by Brownell and Koplan. If, as they hope, federal regulators move to displace disfavored commercial speech with government-mandated speech, First Amendment challenges may arise. In last week’s Sorrell v. IMS Health Inc. ruling, six justices strongly reaffirmed the high burden governments must overcome when curtailing economically motivated speech with which it disagrees.
In Brown v. Entertainment Merchants Association, Justice Scalia’s majority opinion rejected the notion that a law banning the purchase of “violent” video games by “minors” was necessary to protect the interests of parents in California. Why? Because the gaming industry, through the Entertainment Software Rating Board, voluntarily labels games based on their content. As Justice Scalia notes, the Federal Trade Commission has positively remarked on this self-regulatory system, and, he continued, it “does much to ensure that minors cannot purchase seriously violent games on their own, and that parents who care about the matter can readily evaluate the games their children bring home.”
While regulation-first advocates like Professor Brownell and Dr. Koplan are busy urging government to further eat away at consumers’ freedoms, free enterprise is devising and implementing solutions that provide accessible, useful information which we can use to make personal choices. And if consumers think companies are being “untrustworthy” in offering that information, we can vote with our feet and our money, by buying something else.