Arizona Law Review
Alexia Brunet Marks, Taming America's Sugar Rush: A Traffic-Light Label Approach, 62 Ariz. L. Rev. 683 (2020), available at https://scholar.law.colorado.edu/faculty-articles/1309.
Excess added sugar negatively impacts health and can lead to a litany of problems, such as diet-related chronic diseases, e.g., diabetes, cancer, heart disease, and obesity, costing Americans millions in rising medical bills each year. Even more, new studies reveal that individuals with these underlying chronic diseases are at a higher risk of complications from COVID-19 and other viruses compared to those who are deemed healthy. And yet added sugars are difficult to avoid because unlike naturally occurring sugars found in fruits, vegetables, and milk, these sweeteners are added during food processing and preparation.
The problem is that while consumers base their first impressions on the nutritional quality of a product by looking at the front of the package, there is no federal regulation or standard for food manufacturers to quickly communicate added sugar risks to consumers on the front of the package. The new Food and Drug Administration’s Nutritional Fact Panel regulations require food manufacturers to disclose sugar content only on the back of the food package, leaving the front of the package for catchy brand advertising. The food industry takes advantage of this regulatory gap, using unregulated phrases like “just a tad sweet,” “sorta sweet,” “lightly sweetened,” and “slightly sweet,” to peddle their foods as low in sugar when they are actually high in added sugar. Angered by this, consumers are filing lawsuits against food and beverage companies for misleading claims and false advertising. Federal regulators could act upon misleading claims, but instead they remain silent as the food industry profits from the added sugars in nearly 80% of the approximately 600,000 foods in the marketplace.
This Article presents a timely, new labeling solution to address this problem: a mandatory, colorful traffic-light indicator on the front of the package, warning consumers of high nutritional content—i.e., an indicator of high fat, salt, sugar, or added sugar content—similar to one used in the United Kingdom. The new label also responds to two additional and pressing trends: (1) the rise in demand for regulating the consumption of sugar-sweetened beverages in the United States, evidenced by a growing number of local taxes and warning labels; and (2) the rise in demand for regulating the consumption of unhealthy foods generally, evidenced by warning labels and plain-packaging approaches in Chile and other countries. This Article uniquely examines mandatory front-of-package labeling in the context of tobacco regulation to gauge food industry response to a traffic-light labeling approach. Using comparative law, this Article presents an accurate and thorough discussion of the legal challenges a new label will encounter in domestic court, arbitral tribunals, e.g., the Bilateral Investment Treaty, Philip Morris v. Australia claim, and multilateral courts, e.g., the World Trade Organization, Australia Tobacco Plain Packaging claim.
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