The FDA, FTC And Food Legislation

This is the sixth in a series of columns that report on the 30^th annual The Lempert Report Trend Forecast; its focus is on the most important issues the retail and food industries face. Today, it’s all about the controversy over how the FDA oversees food and more.

We need to talk about the FDA. In December of 2022 the Reagan-Udall Foundation published their external review of the FDA’s food program. It is important to point out that Regan-Udall is actually the FDA’s Foundation – so if anything, their scathing and highly critical report is even more credible. The evaluation found that FDA has dedicated staff who are committed to protecting public health, but the current culture is inhibiting its ability to effectively accomplish this goal. Case in point, the resignation of industry leader, and if I can say retail visionary when he was at Walmart
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, Frank Yiannis, the Deputy Commissioner of Food Policy and Response at the FDA – citing concerns about the decentralized structure of the foods program. The Reagan-Udall report stressed that leadership must unite both FDA’s mission to enhance food safety and nutrition and its people who strive to meet these goals. The FDA response came almost three months later. The solution, as many in our industry at retail and CPG, have long promoted is the idea of oversight being contained within one body. Currently food safety and nutrition oversight are spread across the Office of Food Policy and Response, the Center for Food Safety and Applied Nutrition and Office of Regulatory Affairs. Reagan-Udall’s finding was that the current structure “detracts from the program’s effectiveness,” in fact stating that without a single clearly identified person to lead the Human Foods Program, the FDA has adversely impacted the organizations culture, led to overlapping roles and competing priorities, which they say results in constant turmoil.

It is critical that this restructure appoints a new lead who has expertise in food policy and nutrition – something I’m sure every registered dietitian, nutritionist, food retailer and manufacturer agrees with and would applaud. So, what to expect over the next few months, or hopefully not years? Sweeping changes for sure, and in the short term, quite possibly confusion and delays. In the long term, having a food and nutrition person at the head of the Human Foods Program will solve many of the issues that we face today – on labeling, guidelines, dietary guidance statements on pack and in marketing materials and media, serving sizes, and educating the general public about health & wellness.

FDA to date has spent an enormous amount of time and money to develop a plan for a “healthy” definition and a labeling scheme for front of pack labeling in the FDA budget. We can only hope that this is one of those initiatives that gets put on hold until the Reagan-Udall organizational proposals are initiated. One hope that I have is that the ‘new’ Human Foods Program lead, which I can only hope for, has an open dialogue with food retailers in particular. Any labeling schemes must have a rigorous discussion with how “healthy” and any other new labels fits into a grocery retailer’s own nutritional labels and signage – both in-store and on-line.

The Federal Trade Commission has woken up to the reality that there are a tremendous amount of false claims on social media – especially with weight-loss products and disease prevention and is mounting an effort for change. It reminds me of the time in the early 80s when I called David Horowitz, who created and hosted a weekly TV show called Fight Back, to borrow a product he found and brought on to Johnny Carson’s Tonight Show – weight loss pants – to bring on Lifetime’s Image Workshop where I was the “the consumer cop” correspondent. The pants were silver and had a fixture on the side of your hip that would attach to a vacuum cleaner – the idea was that the vacuum would suck out the fat from your body if you wore them for 15 minutes a day with the vacuum turned on. The brand was Slim-Skins and guaranteed to reduce your waist, abdomen, hips and thighs a total of 9-18 inches in just three days. It didn’t work, and in those days products like these proliferated.

Today on social media get thin quick and other products proliferate. The FTC has ordered Meta, Instagram, YouTube, TikTok, Snapchat, Twitter, Pinterest and Twitch to supply information including ad revenue, ad views, and all performance metrics on categories of products and services that are more prone to deception. The FTC reports that last year US consumers lost over $1.2 billion in fraud on these scams on social media – cited as the number one place this fraud is occurring. This is an important initiative certainly, but it underscores the value of registered dietitians (now available in many supermarkets throughout the US) who are educated and are professionals equipped to answer consumers questions – not only about nutrition and food, but to be their guide through the misinformation that they are bombarded with every day.

There are two additional initiatives worth watching.

The first is the bill proposal in California that wants to ban products, in particular candies, that have harmful additives and food dyes – including brominated vegetable oil and some red & yellow dyes to name a few. A new study from the George Institute for Global Health, the University of North Carolina at Chapel Hill and the University of New South Wales said that 60% of food in the US contains unhealthy additives – an increase of 10% since 2001. What the California effort points out is that these foods are sold in other places across the globe including Europe without these ingredients, and questions why they are being sold here. The second initiative is in Italy where a bill has been introduced to ban laboratory produced meats and other synthetic foods – the reason is not about health concerns – it’s about maintaining the importance of Italy’s food traditions.

These are a new wrinkle in the fights over food. This time it’s both fact-based and emotional and let’s remember this combination will elicit change.

Tomorrow, the 2023 Trend Forecast continues with a discussion about the future of retail.

Vintage Paper Ads1978 Slim-Skins Vacuum Weight Loss Pants Ad-DI0278
Federal Trade CommissionFTC Issues Orders to Social Media and Video Streaming Platforms Regarding Efforts to Address Surge in Advertising for Fraudulent Products and Scams

ReaganudallOperational Evaluation of FDA’s Human Foods & Tobacco Programs