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This article was originally published in The Tan Sheet

Executive Summary

REP. MOAKLEY's FTC/FDA NUTRITION ADVERTISING COORDINATION BILL IS "MEDIUM PRIORITY" in the final session of the 103rd Congress, House Energy & Commerce staffer Kay Holcombe said at the annual Food & Drug Law Institute Educational Conference on Dec. 14. Passage of the Nutrition Advertising Coordination Act of 1993, Holcombe suggested, hinges on Rep. John Moakley's (D-Mass.) efforts on behalf of the bill. The chances of the bill in a session that will be dominated by health care reform depends upon "how important Mr. Moakley thinks [it] is . . . [and] how important other people think it is," Holcombe said. It must be of "very high priority to someone," she emphasized, to have a chance of enactment. Moakley's bill, which he called "one of [his] top legislative initiatives" for the 103rd Congress when the bill was introduced Aug. 5, would ensure coordination of the Federal Trade Commission's regulation of nutrition-related advertising with FDA's regulation of food labeling. The bill is a revised version of a bill introduced by Moakley in October 1991. The 1993 version differs from the original in that it requires FTC to write regulations that abide by the standards in the Nutrition Labeling & Education Act for nutrition and health claims. House Energy & Commerce/health subcommittee Chairman Henry Waxman (D-Calif.) and Rep. Gerry Studds (D-Mass.) are cosponsors of the bill ("The Tan Sheet" Aug. 16, p. 6). In a separate presentation at the FDLI meeting, Center for Science in the Public Interest Legal Affairs Director Bruce Silverglade supported the concept of FTC coordination with FDA's labeling policy. He suggested that an uncoordinated regulatory framework for labeling and advertising would not be in the "consumer's best interest" and would make the "marketplace a free- for-all." Silverglade said he did not support, however, FTC Commissioner Roscoe Starek's recent predictions at a Dec. 8 National Advertising Review Board meeting that FTC policy would allow advertised health claims "supported by very substantial data" that have not been approved by FDA. Silverglade asserted that such a policy would "totally undermine the Nutrition Labeling & Education Act." Elizabeth Toni Guarino, senior counsel for regulatory affairs of the Grocery Manufacturers of America, also supported the harmonization of food labeling and advertising policies. In a statement presenting GMA's position on the issue, Guarino, however, maintained that the "existing statutory framework is adequate." The separate statutory mandates of the two agencies "provide ample basis for law enforcement policies" that are consistent and appropriate to the two agencies, she said. Guarino asserted that different regulatory approaches should be used for advertising and labeling. GMA does not advocate blindly applying all of the labeling requirements to advertising," Guarino stated. "Such an approach fails to recognize that advertising serves different purposes than labeling and has different approaches," she maintained. GMA opposes the Moakley bill.

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