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NUTRITION ADVERTISING ACT COORDINATING FTC, FDA EFFORTS REINTRODUCED BY REP. MOAKLEY

This article was originally published in The Tan Sheet

Executive Summary

NUTRITION ADVERTISING ACT COORDINATING FTC, FDA EFFORTS REINTRODUCED BY REP. MOAKLEY on Aug. 5 "to insure that the Federal Trade Commission, in its oversight of advertising for Food and Drug Administration[-regulated] food products, abide by the standards, definitions and regulations developed by the Food and Drug Administration pursuant to the requirements of the Nutrition Labeling & Education Act," the congressman summed up in an introductory statement on the bill. Rep. John Moakley (D-Mass.) first introduced legislation to coordinate FTC's regulation of nutrition advertising with FDA's regulation of food labeling in October 1991. The bill was not acted upon during the term of the 102nd Congress, when a grass- roots letter-writing campaign was galvanized against the bill. Cosponsors of the reintroduced Nutrition Advertising Coordination Act of 1993 include House Energy & Commerce/health subcommittee Chairman Henry Waxman (D-Calif.) and Rep. Gerry Studds (D-Mass.). Moakley pointed out that the current version of the bill, which he called "one of my top legislative initiatives for the 103rd Congress," differs from last year's version of the bill in that it requires FTC to "write regulations which abide by the standards developed in the NLEA for health and nutrition claims." Implementing such regulations, Moakley explained, "will give the FTC a solid foundation from which to judge compliance with the law and from which to enforce such rules in the courts. It will also send a consistent message to consumers." The Massachusetts Democrat complained that presently, FTC has primary authority over food advertising under a memorandum of understanding with FDA, but does not adhere to the same rigorous standards in its policing of nutrition advertising that FDA follows in its regulation of nutrition labeling. Moakley noted, for instance, that while a health claim placed on an FDA-regulated label requires "basic agreement from many scientific sources," a health claim in FTC-regulated advertising requires only that the claim be based on "some reliable sources" and that the marketer cite the source in the advertisement. If that source is misleading, FTC's only recourse is to eventually compel the advertiser to withdraw the ad, by which time the misinformation has already spread, Moakley argued. "The only way to ensure consistent, accurate and responsible information in advertising as well as on labels is through a legislative route to bring FTC into compliance with FDA on this issue," Moakley concluded. Such a solution would free FTC from evaluating "these claims on a lengthy, case-by-case, piecemeal basis using, by its own admission, weaker standards than those currently followed by FDA," he declared. According to a discussion draft of the bill, nutrition advertising "characterizing the level of any nutrient" or "characterizing the relationship of any such nutrient to a disease- or health-related condition shall be consistent, to the fullest extent feasible, with the regulations of [FDA]." The bill also would allow state attorneys general to bring civil action against advertisers that violate rules promulgated by FTC; however, the AGs must first provide FTC with written notice of their complaints and allow the commission the right to intervene in the action, if that is deemed necessary. Also, state AGs may not initiate civil actions against an advertiser while an FTC-initiated civil action against that advertiser is pending, the discussion draft states. Similar legislation, the FDA Nutrition Advertising Act (S 68), was introduced by Sen. Howard Metzenbaum (D-Ohio) in January. However, rather than aligning the nutritional product regulation responsibilities of FDA and FTC, the Senate measure would take nutrition advertising jurisdiction away from FTC and rest it entirely with FDA ("The Tan Sheet" March 1, p. 5). In the meantime, FTC has indicated that it is attempting to coordinate its nutrition advertising enforcement activities with those of FDA. At a May 26 hearing on FTC reauthorization, commission Chairperson Janet Steiger told the House Energy & Commerce/transportation and hazardous materials subcommittee that FTC is evaluating FDA regulations "to determine the most appropriate manner of providing guidance to consumers and industry regarding harmonization of its food advertising enforcement" ("The Tan Sheet" May 31, p. 7). The Moakley legislation was part of a flurry of bills introduced just before Congress went into recess on Aug. 7. Among the recently introduced legislation was Rep. Cardiss Collins' (D- Ill.) Dietary Supplement Consumer Protection Act of 1993 (see preceding story), and Rep. John Dingell's (D-Mich.) Nutrition Labeling & Education Act Amendments of 1993. The NLEA amendments bill, introduced on Aug. 6, would clarify a small business exemption from NLEA.
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