the better approach is for Congress to revisit this issue and give control of alcohol beverage labeling to the FDA so that they can properly evaluate the health statements before they appear on the labels.
The BATF’s history has showed that their policies are often influenced by the alcohol beverage industry. As previously discussed, in 1979 and 1981, the BATF attempted to promulgate regulations regarding ingredient labeling for alcohol. The industry lobby was so strong that these regulations were never put into effect. In Center for Science in Public Interest v. Dept of Treasury, the Court commented on how ingredient labeling decisions were made by conducting a cost-benefit analysis. This illustrates the way in which BATF makes decisions. Not necessarily a method that should be endorsed when considering health claims. In 1988, BATF finally approved health-related statements for which they drafted the language to be used and required the exact words to appear on the label. Now that the tide has turned and the labeling of alcohol may increase sales, the industry is lobbying the BATF again. This time they are in favor of labeling. The 1999 labeling regulations were a result of this lobby. Again BATF determined the exact language that could be used on the label without giving the industry any flexibility or options. What is worse is that these statements are meaningless appeasement. They fail to provide the consumer with any information that may assist him or her in making an informed decision. In short, The BATF is too quick to change their mind under the pressure of the industry; and they should no longer be the gatekeeper for the claims on alcohol beverage labels.
In 1999, the BATF announced they would hold a public hearing on the health claims of alcohol to determine the proper use of labeling and advertising health effects. The BATF invited comments on the proposal to permit balanced labels that were properly qualified, detailed, specific, and outlines the categories of persons for whom the positive effects would be outweighed by numerous effects. This proposal sets the bar very high for alcoholic beverage manufacturers. It does not allow them to make any health effects statements unless they are specifically addressed to all classes of people who may not realize the health benefit. The practicality of this proposal leaves something to be desired. The proposal does not allow the industry to make truthful positive statements even in a limited sense unless accompanied by the complete list of negative effects. The BATF was attempting to strike a balance between the positive health effects and the negative effects; however, they did not strike the balance in the proper place.
Although the FDA has traditionally been even more paternalistic then the BATF, it is beneficial to consider the FDA use of the NLEA in health effects labeling on foods to provide a more adequate solution. Even the BATF recognizes that they may not be the best agency to evaluate the health effects and have stated that it will be necessary to consult with Health and Human Services to properly address the issue. The NLEA provides an interesting framework to evaluate health effects labels. Although the NLEA originally required the approval of each and every health claim, currently, the manufacturer may include health claims for which they have significant scientific agreement. The FDA’s ability to control labels was limited by Pearson v. Shalala . The Court in Pearson evaluated the regulations on labels of dietary supplements using the commercial speech three-part test. The first issue is whether the government’s interest is substantial. The next issue to consider is “whether the regulation directly advances the government interest asserted.” The third part of the test determines whether the fit between the government’s means and the desired ends are reasonable. The Court was skeptical of this paternalistic attitude and found that “disclaimers are constitutionally preferable to outright suppression.” The new approach of flexibility and finding the least r