 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 and deceptive advertising and not in protecting the health of the food consumer. Since the mission of these two agencies is vastly different it is important not too place too much emphasis on the benefits of the FTC approach. The FTC does provide greater access to the consumer, but since it does not thoroughly evaluate all claims made by food manufacturers it may be providing this information at too great a cost. There are studies that indicate that the FTC approach does strike the right balance. For example, FTC Bureau of Economics Staff Report conducted a study examining fat and cholesterol consumption from 1977 to 1990. The study found that the relaxation of restrictions that allowed more diet-health claims on food added competitive pressure to food markets and led to reduced consumption of foods high in fat and cholesterol. The evidence refuted the deceptive/confusion hypothesis that suggested the increased information to the consumer would lead to further deception in the marketplace and damage the consumer’s diet. The FTC provides another approach to regulate health claims on wine, but because the focus is on defrauding the consumer and not on the safety of the product this may not be the best approach to adopt.
After the passage of the NLEA health claims were permitted on food labels. Although at first the FDA was over conservative with the approval process of health claims, the current approach indicates that the FDA has adopted a more moderate attitude. After Pearson v. Shalala , the FDA was forced to recognize the benefit of providing information to the consumer and the right of food manufacturer’s to disseminate information connecting diet and health benefits. Since the FDA must now attempt to achieve the least restrictive method for protecting the public against false health claims, it is possible to label foods with beneficial health claims and disclaimers. Some may argue that this approach still does not provide the necessary flexibility to get adequate information to the consumer; these critics fai