 beverages and that this is more limited than the mandate of the FD&C Act, the BATF did not feel comfortable blindly adopting the FDA’s standard. Instead the BATF proposed to open up the debate for public comment. Although no specific action came out of that 1993 statement, the Treasury did announce approved health related statements in February of 1999.
In 1999, the Department of Treasury announced that approved two statements for wine labels. The two statements are (1) “The proud people who made this wine encourage you to consult your family doctor about the health effects of wine consumption.” (2) “To learn the health effects of wine consumption, send for the Federal Government’s Dietary Guidelines for Americans, Center for Nutrition Policy and Promotion, USDA, 1120 20th Street, NW, Washington, DC 20036.” These statements for wine labels had been strongly supported by wine producers. This is the third example of how the industry has convinced BATF to create a policy that favors the industry. To illustrate the pressure of the industry, in 1998, the Robert Mondavi Corporation was convicted for trying to influence the Secretary of Agriculture with gifts. One of the policies that Mondavi hoped to influence was the USDA Dietary Guidelines. Every five years these guidelines are reevaluated, Mondavi hoped that moderate consumption of wine would be included as a health benefit that was worthy of the guidelines. The guidelines now include statement regarding wine consumption. Although that statement is not a direct influence of Mondavi’s action, the case does illustrate the lengths the industry will go to for a favorable policy.
The latest development on health claims on alcohol labels came in December of 1999 when the BATF announced that they would hold public hearing on the issue. The latest regulation would allow health claims to appear on alcoholic beverage labels as long as they were “balanced.” The BATF wants to ensure that any positive health claims are presented to the consumer along with negative health claims. The concern is that people might come to incorrect conclusions about the use of alcohol. BATF is also concerned that the two statements approved in February for wine labels will not provide the intended benefit to the consumer and might by misleading.
For the past twenty-five years the BATF has had exclusive control over the labels of alcoholic beverages. This brief analysis of some of the policy decisions of the BATF illustrate that the agency is heavily influenced by the industry, which it is supposed to control. On two occasions the BATF attempted to require ingredient labeling. And, on two occasions the BATF rescinded their proposal because of the cost that it would impose on the industry. The current shift in policy in favor of health claims labeling makes BATF subject to extreme scrutiny. The agency is trying to balance the industry interest with the consumer’s interest. Within the last ten years the industry influence has changed with the possibility of positive health benefits of moderate consumption. Now that health effects on labels may provide economic benefit, the industry is ready and willing to support this new policy. Once again BATF is attempting to balance these interests as evidenced by the statement that labeling can include positive health effects as long as it presents balanced information regarding the negative effects of alcohol consumption. The BATF does not have the experience or the neutral position to properly evaluate health claims for alcoholic beverages. It is therefore necessary to look to other approaches. The FDA currently evaluates health claims under the Nutrition Labeling and Education Act. This approach will be examined to determine its applicability to this issue.
B. The NLEA
In 1990 Congress passed the Nutrition Labeling and Education Act. The NLEA was revolutionary because for the first time the FDA was allowing health claims on food labels. Previously health claims could not be put on food labels because this type of statement would bring the food within the scope of the