Halloween means haunted houses, creepy movies, and, of course, lots and lots of treats. From sugary candy bars to salty potato chips, the spooky season has long been a time to gorge on the goodies we love.
But here’s the truly scary part: A growing body of evidence suggests that these foods may not love us back. Not only do they contribute to diet-related diseases, but they can also be detrimental to our overall health.
Potential — and controversial — new changes to the packaging of many supermarket favorites could help with that, says Emily M. Broad Leib ’08, a clinical professor of law at Harvard and longtime proponent of food literacy and better food policy for health and environmental sustainability.
In 1990, Congress passed the Nutrition Labeling and Education Act, ushering in the United States’s original comprehensive food labeling system, requiring food packaging to include information about calories, fats, sugars, and other nutrients. Today, the U.S. Food and Drug Administration is considering another major innovation: front-of-package labels that clearly indicate when the food inside is particularly high in sugar, fat, or sodium. Broad Leib, who is also the director of Harvard’s Center for Health Law and Policy Innovation and its Food Law and Policy Clinic, says that the new labels will help people make better choices at the grocery store.
“I think people will still enjoy their treats when they want them,” she says. “But with the things that you’re intending not to be treats — the things you are hoping will provide nutrition to your family — you will have a better idea of what they contain.”
But if implemented, the policy is likely to run up against stiff opposition from food producers, who have argued that additional labeling requirements could increase prices or violate their speech rights, or that the labels are not effective in reducing obesity rates.
In an interview with Harvard Law Today, Broad Leib explained the FDA’s goals, how food companies are likely to fight back, and what the new regulations could do for public, and personal, health.
Harvard Law Today: What is the FDA hoping to do with its new labeling requirements?
Emily Broad Leib: Consumers often report that they look at back-of-package nutrition facts, but using eye-tracking data, studies have found that fewer than 10% of consumers actually do so. That’s understandable: It’s kind of boring, it’s a lot of information. There are literary and numeracy concerns because you have to do complicated math to figure out how serving sizes relate to how much you’ve actually eaten, and so on.
What FDA has realized over time is that if we really want to help people make healthier choices, we’re going to need to do something a little bit better. In fact, a number of other countries have taken steps and put forward various models of front-of-package labeling to help consumers get this information.
So now, FDA is in the process of figuring out exactly what they want that to look like. The idea would be something on the front of the package that is shorter and easier to understand. A few examples they’ve put out even use color coding, like a traffic light, to show high levels of fat, salt, or sugar.
HLT: What kinds of food products would the regulations apply to?
Broad Leib: With no draft rule yet, it’s a little hard to know. But one thing we can say for certain is that they’ll be packaged food products. FDA has authority over packaged foods that are sold nationally, and this is how they set the rules for nutrition facts, ingredient labeling, and regulating certain types of health claims on products.
One other thing I would like to note is that I’m waiting to see in the FDA-proposed rule what level the agency sets for the amount of sugar/sodium/saturated fat it considers “high.” I think that will have a big impact on how successful the rule is.
HLT: What is the process like when the FDA wants to make changes like these?
Broad Leib: That’s a good question, and one that’s gotten slightly more complicated since the Supreme Court’s decision in Loper Bright v. Raimondo, which took away some of the ability of agencies to do things of their own volition if there’s not very clear authority from Congress to do so. In the past, if there was a lack of clarity in Congress’s grant of power to an agency, courts would ask if the agency’s interpretation was reasonable. Now, a court is going to ask what it thinks Congress would have wanted this power to look like.
But here’s the problem. With labeling and other things related to nutrition and food, the science keeps changing. What consumers want has been evolving. And so, we’re basing a lot of the decisions FDA is making on old laws. The nutrition facts panel was something that Congress required of FDA, and gave it the ability to make updates over the years. But there’s a little bit of an open question around front-of-package labeling, because there isn’t a clear requirement from Congress for them to do that.
HLT: You also mentioned that food companies seem poised to argue that these regulations would violate their First Amendment rights. What do you make of that argument?
Broad Leib: This is one of the more complicated areas of law. Courts’ interpretation of First Amendment protections for companies, known as “commercial speech,” has changed drastically over the last 50 years. Courts have given more and more protection to companies, which has made it harder for FDA or other regulators to restrain companies from speaking in certain ways. It has also made it harder to require certain labels or disclosures, or what is known as “compelled commercial speech.”
My argument would be that the new labels are not that much of a stretch from what’s already on the nutrition facts panel. It’s based on information that’s already there on the back of the package. You don’t have to gather new information to report, you just have to put it in a new location.
The other big difference for the new label is that rather than just giving a number, we’re qualifying that number (i.e. saying it is “high in”) to make it easier for consumers to understand. The test a court applies for compelled commercial speech is whether the compelled disclosure is “factual and noncontroversial.” In this case, the information is factual, and we have evidence to show that high levels of sugar or fat or calories have a negative impact on human health. Ultimately, I think the science is there, and it builds on something that’s already required, so hopefully the courts will see it that way too. But, I definitely think there will be litigation, and I hope that FDA can make sure they are very clear on the science backing up their requirement and the qualifying nutrient levels, to ensure they are successful in court.
HLT: Another argument may be that these types of requirements don’t actually work. According to a Washington Post article about these changes, Chile continued to experience rising obesity rates after their new labeling requirements were instituted in 2016. Do you think that’s a fair assessment?
Broad Leib: I think that doesn’t show the whole picture. There was a 2020 study that found that consumption of sugar sweetened beverages dropped by 23% in 18 months after Chile’s regulation went into effect. In addition, overall calories, sugar, saturated fat, and sodium purchased declined by various degrees. You will see the impact on consumption far earlier than its impact on health, especially if the health outcome you’re looking at is obesity rates. So, I anticipate we will see health outcomes, in addition to these purchase changes, over time.
HLT: How do these proposed requirements stack up against regulations in other countries?
Broad Leib: That’s hard to answer because we’re still waiting to see what, exactly, FDA will propose. But to stick with Chile, they use an image of a stop sign on their packaging to indicate when a product is high in calories, sugar, salt, or fat. That is a very visual indicator for people.
Compared to that, the example labels shared by FDA are more muted, and look a little more like a mini-nutrition facts panel for the three nutrients of concern. But, putting them on the front, making them simple, and maybe even using color coding to help people interpret the information they’re looking at, will be a huge improvement from what we have today.
HLT: What impact do you think these new labeling requirements could have on our consumption or long-term health?
Broad Leib: There are a few different ways this could impact health, and they include consumption, reformulation of the products themselves, and procurement. Most people will think first about the impact on consumption, which of course is very important. And we’ve seen from some of the data from Chile, for example, that purchasing habits do change. But the other huge impact is on product formulation.
One thing that is really notable right now is the amount of sugar in packaged items. Sweeteners are so cheap in this country, especially because much of it comes from corn syrup and we produce a huge quantity of corn in this country. It is so cheap that there is almost no limiting cost factor, and so companies use a lot of it. But if there were a label on the front pointing out that an item is high in sugar, companies might decide that they are going to dial back the sweeteners, reformulating their product to make it appear better and ensure that customers still buy it.
And finally, on the procurement side, institutions like K-12 schools, or Harvard, might decide to make different purchasing decisions to limit the number of products with such warning labels on the front. This would also improve overall consumption and hopefully have positive health impacts over time.
HLT: Do you think these regulations would go far enough? What else should be done, if not?
Broad Leib: How much time do you have? One thing I’ve been doing a lot of writing about lately is that FDA also has oversight over additives and substances added to food, and they’ve allowed a lot of things to stay in our food supply. There’s one category of ingredients that has a loophole where FDA doesn’t oversee them at all, and those are substances that are determined by the manufacturer to be “generally recognized as safe.” It’s up to the company to say if their product is generally recognized as safe, and if they say that it is, they can choose to go through a voluntary notification to FDA, but they are also allowed to market the substances without notifying FDA at all.
I think these new labels are going to be helpful with some of the known items, like salt, sugar and fat, but they won’t help with these additives. I am especially concerned if we start seeing companies reformulate their products to remove sodium or sugar, for example, but substitute in other unknown ingredients.
FDA is currently engaging in a process to think about how they review chemicals and additives in food post-market, but I and a lot of others have been saying that it needs to also be a better gatekeeper pre-market. California just banned five substances in foods, some of which were approved additives and were showing up in foods because they were generally recognized as safe, allegedly. That spurred FDA to take action on one of those, which it then banned: brominated vegetable oil. Other states, like New York and Illinois, are also considering bills that would ban some additives in food, with the idea that FDA isn’t doing its job there.
Finally, a bill was introduced earlier this year by Senators Bernie Sanders and Cory Booker looking not just at foods high in sugar, salt, and fat, but foods that are considered ultra-processed. There is a lot of crossover in those foods, but there is data coming out that the level of processing also matters. I think there’s an opportunity to alert consumers about that, or, even more importantly, to invest more resources into research to understand the impact of these foods on health. There has just been a dearth of federal investment in nutrition related research.
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