“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. The IWG states in its draft that “[the Principles] should not be interpreted as a change in federal dietary guidance or nutrition policy,” or “signal any departure from the 2010 DGA.” The draft also contradicts these statements by noting the “proposed nutrition principles . . .  include adjustments in specific recommendations to reflect the fact that the principles would apply to individual products and, specifically, to foods that are most heavily marketed to children ages 2-17 years, rather than to an overall diet.”

For instance, the DGA recommends a daily sodium intake of 1,500 milligrams. The Nutrition Principles propose that foods marketing to children contain no more than 140 milligrams, a standard that would require formulation changes in foods that the DGA encourages, such as whole-grain breads, nearly all whole-grain cereals, and yogurt. These are the types of products that many children eat for breakfast, a meal the DGA considers critical. These foods also provide the types of nutrients, including folic acid, that the DGA promotes. As the National Yogurt Association’s comment to the IWG point out, the Nutrition Principles’ definition of “low-fat” conflicts directly with the Food & Drug Administration’s definition. The IWG’s definition would frustrate parents’ ability to meet the DGA goal of increasing the intake of fat-free or low-fat milk products.

These conflicts and others in the Nutrition Principles thoroughly undermine Congress’s efforts, through the National Nutrition Monitoring and Related Research Act, to ensure that the federal government has centralized nutrition standards. It is for this reason that the Act compels Ag Department and HHS review of any new nutrition guidance. If either Secretary decides that the new guidance conflicts with the DGA, the federal agency that proposed the guidance must publish it in the Federal Register and establish a 60-day public comment period.

After that period ends, the HHS or Ag Department Secretary can approve the new nutrition guidance after addressing “significant and substantive comments” from the public, 7 U.S.C. § 5341(b)(2)(B), and determining that “the guidance is based on medical or new scientific knowledge which is determined to be valid.”  Id. § 5341(b)(2)(A).

To this point, it doesn’t appear that any of the above-mentioned requirements have been met. If the IWG (whose member agencies include HHS and the Ag Department) goes forward with a revised Nutrition Principles without doing a formal review or providing a full opportunity for comment and a written explanation for their actions as federal law requires, legal challenges are almost certain to follow. An aggrieved party could argue that the IWG’s action was arbitrary, capricious, or otherwise inconsistent with the Administrative Procedures Act.

Administrative procedures such as those in the National Nutrition Monitoring and Related Research Act protect the public from federal agency freelancing on critical matters like nutrition. Agencies must fully conform to the process in the same way that they demand compliance from those businesses and individuals they regulate.