FDA’s “Added Sugar” Labeling Proposal: More Information Isn’t Always Better (or Legal)

FDA's proposed Nutrition Facts format
FDA’s proposed Nutrition Facts format

The Food and Drug Administration’s (FDA) proposed addition of “added sugars” to the mandatory Nutrition Facts label on packaged food lacks scientific justification, is more likely to confuse than inform consumers, and will expose the agency to a constitutional challenge. So why is FDA pushing forward with this counterproductive idea?

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In announcing proposed changes to the 20-year old “Nutrition Facts” label, FDA reminded us that the purpose of the ubiquitous label is to “help[] consumers make informed food choices and maintain healthy dietary practices.” The update ostensibly would provide, among other improvements, “greater understanding of nutrition science.” However, one of the update’s most highly touted additions—a new line item for “Added Sugars,” triple-indented under “Carbohydrates” and “Total Sugars”— thoroughly fails to achieve these stated goals and contradicts current nutrition science.

Uninformative. If the Nutrition Facts label exists to “help consumers to make informed food choices,” then shouldn’t FDA be certain that listing added sugars would in fact be helpful? The agency, though, acknowledges in its March 3 proposal that it is “not aware of any existing consumer research that has examined this topic.

One public comment provided to FDA did offer consumer research, and the data thoroughly undercuts the “Added Sugars” proposal. The International Food Information Council (IFIC) Foundation conducted a consumer survey that conformed to OMB requirements for government research. The results revealed confusion among surveyed consumers over the meaning of “Added Sugars.” More than half of respondents believed that Added Sugars were different from the sugars included in “Total Sugars.” A substantial number believed that instead of being a part of the Total Sugars figure, Added Sugars should be added to Total Sugars. Consider, for instance, a bottle of sweetened iced tea, which is currently labeled to contain 22 grams of sugar per serving.  None of the sugar is naturally occurring. If the proposed Nutrition Facts label is adopted in its entirety, consumers might look at the 22 grams of Total Sugars, and the 22 grams of Added Sugars, and conclude that the tea contains 44 grams per serving. In addition, the survey found that a majority of consumers felt that products listing added sugars contained more sugar than was actually present, a perception that would affect their purchasing decisions.

An agency whose mission is consumer protection must not mandate confusing or misleading label information. FDA should take heed of the IFIC Foundation research and do what it should have done from the start: study the issue before mandating that Added Sugars be listed.

Unjustified. FDA asserted in its proposal that noting Added Sugars would help consumers adhere to the 2010 federal Dietary Guidelines, which encourage consumption of more essential nutrients per calorie. But for reasons that FDA itself pointed out in the very same proposal, this argument cannot justify “Added Sugars.”

FDA has traditionally regulated sugars in connection with calories, because physiologically, the body does not distinguish between a sugar that is intrinsic and one that is “added.” The agency acknowledged “there are currently no analytical methods that are able to distinguish between naturally occurring sugars and those sugars added to a food.” FDA further conceded that the 2010 Dietary Guidelines state that “added sugars do not contribute to weight gain more than [any other] calorie source.” If that’s not enough to completely undermine its own proposal, FDA also admitted that “U.S. consensus reports have determined that inadequate evidence exists to support the direct contribution of added sugars to obesity or heart disease.”

It is not surprising, then, that the American Society for Nutrition, in its comment on FDA’s proposal, refused to endorse listing Added Sugars. The group wrote that “a lack of consensus remains in the scientific evidence on the health effects of added sugars.”

If FDA proceeds in the face of such scientific uncertainty, it will be imposing a purely precautionary regulation antithetical to U.S. administrative law principles.

Unconstitutional. In its Nutrition Facts proposal, FDA took for granted that it possesses the constitutional authority to mandate more speech. Not even a passing reference was made to the First Amendment.

In its comments, WLF explained why an Added Sugars mandate is quite vulnerable to constitutional challenge. Such a requirement infringes on food manufacturers’ First Amendment right to refrain from speaking. U.S. Supreme Court precedents dictate that unless speech mandates correct misleading information, government faces a substantial burden in justifying such regulations. WLF argued that since the “Added Sugars” mandate does not correct misleading speech, it must survive heightened First Amendment scrutiny. FDA did not offer a substantial governmental interest in requiring the addition of Added Sugars to the Nutrition Facts, and even if it had, the agency did not prove that the proposal advances this interest “to a material degree.”

To What End? If  listing “Added Sugars” does not advance consumers’ dietary literacy or reflect new developments in nutrition science, why did FDA propose it? Considering the contradictory comments the agency included in the March 3 proposal, one wonders whether FDA is convinced about the need for or value of Added Sugars.

Is FDA, a nominally independent agency, acting at the behest of higher ranking policymakers to advance their broader agendas? That possibility has certainly been noted. Public health activists, whose views strongly influence senior health policymakers, have long lobbied for such a specific Added Sugars reference.

Some activists might not be at all troubled if consumers do misinterpret the Added Sugars reference and decided not to purchase certain “disfavored” food items. And certainly their allies in the plaintiffs’ bar, who are desperate to find a lucrative lawsuit angle for themselves or one to pitch to litigious state attorneys-general, would welcome a federally sanctioned accounting of who is adding sugar and how much.

We encourage FDA to assert its independence and follow where the scientific evidence leads it: more information is not better when it comes to the amount of sugar in our foods.

Also published by Forbes.com at it WLF contributor site

2 thoughts on “FDA’s “Added Sugar” Labeling Proposal: More Information Isn’t Always Better (or Legal)

  1. Pingback: Food roundup - Overlawyered

  2. Pingback: The 2015 Dietary Guidelines: Another Federal Food Activism Vehicle? | The WLF Legal Pulse

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