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“We’re From The Government and We’re Here To Tell You How You May Advertise Your Products”

Monday, October 26, 2009  |  posted by Hugh Hewitt

My column today picks up where my column last week left off -pointing to the “guidance” from the Food and Drug Administration issued last week that warned all food manufacturers in America that big brother was watching their “front of package” branding and was ready to pursue penalties against any packaging claims that the FDA found not only false or misleading but also lacking in nutritional soundness. Some of America’s biggest names in the food business took quick note of the threat and suspended one campaign designed to brand their products as a “Smart Choice” for consumers. Just like that, millions of dollars of marketing effort went poof.

Not your problem, right? The sunk costs in the “Smart Choices” effort and any other similar effort cannot impact your grocery bill by even a nickel or even a penny. What’s the harm in that?

Only that the government flexed a previously unannounced power and the market shuddered and retreated a few steps. The FDA now knows all it has to do is publish a “guidance letter” and the marketplace will react.

Not only will the FDA bureaucracy be emboldened as to cereal packaging, but toward all other food packaging as well. Once the premise of the guidance letter is accepted -that it is the federal government’s business to police claims of nutritional soundness-there is not limit to the fed’s reach. Once the prevention of obesity is a sufficient reason to prosecute a package, which packages are going to be safe from government scrutiny? And if a package can be exiled, why not the product within it?

It is easy enough to understand why the food companies blinked -the plaintiffs’ bar. Just last week McDonald’s, Burger King and Friendly’s were sued for allegedly failing to warn consumers that their grilled chicken products contain a dangerous carcinogen. Imagine the attention that various products will attract from predatory plaintiffs’ lawyers if those lawyers can point to FDA “guidance” denouncing this or that bit of packaging and then assert a claim that children suffering the ill effects of obesity would not have been so burdened if the packages had just fairly informed mom of the nutritional dangers involved.

Corporate counsel in America’s largest, most successful food companies are practiced in the demands made by “consumer groups” masquerading as public advocates and by narrow issues lobbies that have confused their passions for particular food choices –the “slow food” movement, for example-with urgently necessary public policy choices backed by threats of recalls, fines and even prosecution. Within every major food company there is a regulatory compliance branch that surveys all the regimes of the fifty state governments, the international regs wherever products are sold abroad, and of course the FDA.

Now too they will be obliged to patrol the courts of 50 different states, trying to stay one step ahead of the state court lawsuits opening their products up to claims of injury due to content or inadequate warning. Lots of really obese kids out there. Someone’s got to pay the bill. Plaintiffs’ lawyers will be arriving in locust like numbers to demand payment from food producers with snazzy boxes and catchy jingles. “They made my child obese!” will be the rallying cry. “Pay up!”

The alternative to this scenario playing out is for the food industry to push back and push back hard, beginning with this guidance letter from the FDA. Challenge the FDA’s claim of authority over “Front of Packaging” (“FOP”) decisions in a free society, and ask the public to join in the effort.

Not only would manufacturers challenge the assumptions in the guidance letter, they would stand ready to fight back in court as well. They should challenge any particular application of any particular packaging regulation as in excess of the authority inherent in the regulation.

The regulation itself should also be attacked as in excess of authority the statute could confer in the first place. Not so long ago the Supreme Court ruled that the United States of Army Corps of Engineers had exceeded the authority granted it under the Clean Water Act when the Corps attempted to regulate some intermittent streams not connected to a navigable water. Agencies get carried away with heir own sense of mission, and usually because they are staffed by dedicated professional passionate about their work but less concerned with the appropriate limits on federal power in a government that values personal liberty over many other good things.

Finally, if the application of the regulation was appropriate and the regulation itself did not exceed the authority of the statute that gave it birth, then the statute, the regulation and the application would all have to be tested against the First Amendment’s robust protection of Free Speech, including commercial speech. Consumer advocates might balk at the idea that puff talk in selling is in any way protected by the First Amendment, but not only is it protected, it is as protected as all sorts of speech upon which American puts value. Increasingly this kind of commercial speech is being understood as every bit as central to our lives as political speech and artistic speech, and certainly it deserves at least as much protection as vulgar or licentious speech has garnered over the past many years.

The food industry needs to convene –right now– a gathering devoted to whether or not it will simply accept FDA-governed marketing in all aspects of its business, because that is the path the government is on. I think the manufacturers would be surprised at the support they would receive from the public in any effort to push back at federal regulators and refuse to be dictated to on such matters.

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