Associate Law Professor Diana Winters argues in “The Magical Thinking of Food Labeling: The NLEA as a Failed Statute” that those parts of the Nutrition Labeling and Education Act of 1990 (NLEA) regulating “health claims” and “nutrient content claims” have been ineffective at addressing obesity and should be repealed. While Winters acknowledges that leaving this aspect of food labeling to the states will result in an increase in litigation, because the current litigation environment is dominated by time-consuming, complex arguments over non-substantive issues, such as preemption and the primary jurisdiction doctrine, the best way to improve front-of-package labeling is to allow state courts to focus on the substance of deceptive claims.
Among other matters, the author notes that attitudes about food consumption “vary wildly from state to state,” thus justifying differing state and local laws in the field of food labeling. She also observes, “By crafting laws tailored to targeted industry, states may also be able to compete with each other economically.” Winters further contends that “the availability of state law remedies for injured consumers provides a force to monitor products after they have reached the market. Because food labels are not subject to a rigorous pre-approval process like that for new drugs, the usefulness of citizen surveillance cannot be overstated.” Without the NLEA in play, “state Attorneys General could take an expanded role in monitoring health and nutrient content claims through litigation and education.”