government agues that the commercial speech doctrine does not prefer disclosure over complete censure. The Court does not agree with the government’s position, responding that “disclaimers as constitutionally preferable to outright suppression.” Since the FDA failed to consider whether disclosure would satisfy the government’s interest in protecting the consumer, they have blatantly disregarded a less restrictive method. The case was remanded and the FDA was required to consider whether the disclaimer would sufficiently satisfy the government’s interest. In addition, the FDA was required to provide guidance on the meaning of “significant scientific agreement.”
The paternalistic approach to FDA would be replaced with a more flexible approach as required by the Pearson decision. The FDA could no longer censure all health claims on a determination that they may be misleading. Instead the FDA is now required to consider less restrictive approaches. Agencies have been instructed that the paternalistic assumption that the public will use this information unwisely will not justify suppression. Pearson instructs the FDA to recognize the consumer need to receive information.
Even after Pearson , the FDA remained conservative in its approach to health claims. In 2001, there were approximately seventeen approved health claims that could be used on food labels. Each claim is authorized with model language to be used on the label and criteria that must be met in order for the food manufacturer to make the claim. One example of an approved health claim is for the connection between fruits and vegetables and cancer. The approved model claim is “Low-fat diets rich in fruits and vegetables (food that are low in fat and may contain dietary fiber, vitamin A or vitamin C) may reduce the risk of some types of cancer, a disease associated with many factors.” The criteria that must be satisfied are that that the food must actually be a fruit or vegetable, that it must be low in fact, and must be a good source (without fortification) of one of the following: vitamin A, vitamin C, or dietary fiber.
In looking for the best solution to govern wine labels, it is important to consider how the FTC has dealt with health claims in the advertising of food. The FTC brought its policies up to date with the passage of the NLEA and the recognition that health claims provide the consumer with important information. One commentator has suggested that the FDA adopt an approach that more closely resembles that taken by the FTC. The commentator argues that the FTC approach provides the necessary flexibility and effectiveness required to properly regulate health claims. The FTC issued a policy statement in 1994 that set out that health claims should be supported by “competent and reliable scientific evidence.” This standard on occasion may allow health claims that would not otherwise be allowed by the FDA’s “significant scientific agreement” standard. The FTC further defines the “competent and reliable scientific evidence” standard in the following manner: “test, analyses, research, studies, or other evidence based on the expertise of professionals in the relevant area, that have been conducted and evaluated in an objective manner by persons qualified to do so, using procedures generally accepted in the profession to yield accurate and reliable results.” The FTC will rely on the FDA for the levels of fat, saturated fat, cholesterol, and sodium that will disqualify a food from including a health claim, but will not necessarily prohibit the advertising of health claims that do not meet these levels. The guidelines do indicate that a failure to identify risk increasing factors may make the advertising claims deceptive and unacceptable. Although the FTC provides a more flexible approach, it does not have the experience or the scientific means to properly evaluate the claims made by food manufacturers. The FTC policy statement specifically mentions that it will rely on the FDA for several determinations. The FTC is concerned with protecting the consumer against fraud 