“Voluntary” Food Advertising Principles Raise Legal Questions Under Federal Nutrition Law

Cross-posted by Forbes.com at WLF’s Contributor Site

The draft Nutrition Principles to Guide Industry Self-Regulatory Efforts on children-directed food marketing (“Nutrition Principles”) have undergone withering criticism from affected businesses, Members of Congress, and interested members of the public.  In response, the Interagency Working Group (“IWG”) which issued the draft last April has pledged to make changes to its original draft.

But the IWG has shown no inclination to make one critical change, which, if unmade, could expose the Nutrition Principles to a legal challenge. Because the Nutrition Principles constitute “dietary guidance” which differs from the official U.S. Dietary Guidelines for Americans (“DGA”), a strong argument can be made that the Secretaries of Agriculture and Health and Human Services must formally review the IWG’s draft.

The National Nutrition Monitoring and Related Research Act of 1990 (“the Act”) requires that

[a]ny Federal agency that proposes to issue any dietary guidance for the general population or identified population subgroups shall submit the text of such guidance to the Secretaries [of USDA and HHS] for a sixty-day review period.”

7 U.S.C. § 5341(b)(1) (emphasis added). The IWG’s Nutrition Principles constitute “dietary guidance.” They lay out specific nutrition requirements for the foods which companies market to children and, if those companies cannot reformulate their products to meet those requirements, they should not advertise them.

The Nutrition Principles deviate from the Nutrition Guidelines for Americans. Continue reading ““Voluntary” Food Advertising Principles Raise Legal Questions Under Federal Nutrition Law”