Labeling considerations

by Robert Hibbert
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Through mid-February, the Food Safety and Inspection Service (FSIS) will be accepting public comment on what it terms a “supplemental proposed rule,” which would require nutrition labeling of major cuts of single-ingredient raw meat and poultry. By doing so, in procedural terms the agency is delivering on a 17-year-old promise embedded within its current regulations to take such action unless it could be satisfied such information was being provided voluntarily at an acceptable level.

If nothing else, the initiative nicely documents the fact that while the gears of the bureaucracy often grind exceedingly slowly, they never quite stop. It would also seem that with the passage of so much time, it is worth stepping back and at least asking whether it is a particularly good idea to simply allow this process to slog its way to a final conclusion.

Some will try to justify the effort with the argument that the end result will be the provision of valuable information to the public. This is perhaps true, but is this enough? One might argue that it might be equally valuable to apply the same resources, at the same locations, to the posting of pictures of missing children or copies of Shakespeare’s sonnets, but at least at the moment neither idea is being pursued as a potential government mandate.

And then there is the question of legality. Consider me a skeptic. In point of fact, the initiative is a continuation of the FSIS’s me-too approach to FDA’s implementation of the Nutrition Labeling and Education Act (NLEA) enacted in the early 1990s. Among other things, that statute established an analogous scheme to require presentation of such information as it pertains to the most commonly-consumed fruits and vegetables if similar levels of voluntary compliance could not be achieved. In the rather long-winded preamble to its proposal, however, FSIS does not point this out, presumably because it does not want to acknowledge the inconvenient truth that the NLEA had and has absolutely nothing to do with the meat and poultry products it regulates. Instead, it tries to cobble together a rationale that implies products not bearing such labeling should now suddenly be considered misbranded because they do not contain information considered to be of material benefit to the consumer. This overlooks yet another inconvenient truth: The meat and poultry acts identify, with quite a bit of specificity, those particular elements, such as net weight, product name, ingredient content, etc., which should be considered of material interest and nutrition information is not listed among them.

It is noteworthy that FSIS succeeded in bluffing its way past this issue with multi-ingredient products in the early 1990s without significant opposition and it may well succeed in doing so again. This gets us to perhaps the more important question: Legalities notwithstanding, is this – as a matter of policy – a particularly good idea? And at this point, we need to examine how the passage of time might cut against the wisdom of reviving a 17-year-old approach and applying it to an issue that now involves some new realities.

Reviewing major developments

A few major developments come to mind. First, we have the domination of today’s meat case by branded product, obviously, a phenomenon which existed in the early 1990s but not nearly to the degree it does today. This has been coupled with a shift in the mix of the products presented to the consumer. We are, for example, raising a generation of children who may never gaze upon a chicken bone. Such developments suggest that a 17-year-old list of commonly consumed products might be something of an anachronism. But perhaps more importantly, such trends severely undercut the notion that generic, commodity-type information provides much real value to today’s consumer.

At the point of purchase, a consumer is presumably much more interested in the nutritional attributes of Joe’s turkey breast or Jane’s sirloin steak than in some random representative number. If Joe and Jane are, in fact, providing such product-specific information, such generic materials are both confusing and redundant, at best; and if they are not, such materials may be more than a little misleading.

The other critical external development that has unfolded within this timeframe has been the information revolution. While the proposal countenances the idea that video and other such technology might serve a supplemental role at the point of purchase, it still insists upon the presentation of some form of printed information. Does anyone really think that in today’s world it is more efficient or environmentally sensitive to clutter the retail landscape with mountains of brochures that will be glanced at, forgotten and thrown on the floor than it would be to simply direct someone to a Web page?

All in all and notwithstanding the government’s good intentions, what we have here is an effort based upon a dubious legal foundation, which will dictate the use of an expensive and inefficient process for getting information of questionable value to the consumer. Perhaps given these circumstances, this whole idea could be returned to the back burner and we can all give it another look in the year 2027. •

Robert Hibbert is a Washington, D.C.-based attorney with K&L Gates L.L.P. which comprises 28 offices in three continents. His practice focuses on federal regulation of the food and agricultural industries, specializing on issues related to the U.S. Dept. of Agriculture. He formerly served as a senior attorney with the USDA and also served as general counsel to the American Meat Institute.
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