[Congressional Record Volume 150, Number 130 (Monday, October 11, 2004)]
[Extensions of Remarks]
[Pages E1926-E1927]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         REASSESSING FOOD LAWS

                                 ______
                                 

                           HON. ED WHITFIELD

                              of kentucky

                    in the house of representatives

                        Friday, October 8, 2004

  Mr. WHITFIELD. Mr. Speaker, I rise today to discuss an important 
issue facing the next Congress. Since enactment of the Nutrition 
Labeling and Education Act of 1990, obesity rates in America have 
soared, including among children.
  According to a recent briefing provided by the Institute of Food 
Technologists, ``the most recent data from NHANES (National Health and 
Nutrition Examination Survey) in 2002, 65 percent of Americans were 
overweight or obese, 30 percent were obese and 4.9 percent were 
extremely obese. Over 400,000 individuals die each year due to poor 
diet and physical inactivity. For the first time in 100 years, children 
face shorter life spans then their parents, as the obesity rate for 
children has doubled since 1980. The total estimated direct and 
indirect costs of obesity in the U.S. exceed $117 billion annually. 
Less than 1/3 of adults engage in the recommended amounts of physical 
activity. In fact, more than 25 percent of Americans report no leisure 
time activity at all.''
  While evidence suggests that the increase in obesity rates is due 
primarily to a decline in physical activity rather than an increase in 
caloric consumption, the problem will not be solved by increased 
physical activity alone. For the sake of public health, many Americans 
must modify both their diets and physical activity practices.
  We in Congress should examine whether our current food labeling laws 
are providing for the nutrition information, including claims regarding 
the health effects and nutritional composition of foods, that consumers 
need. A realistic appraisal of our food labeling law provides a mixed 
review:

       The law effectively prohibits false or misleading nutrition 
     information. Uniform food labeling laws facilitate consumer 
     education and the efficient flow of commerce.
       The Nutrition Labeling and Education Act (NLEA) and its 
     implementing regulations took a prescriptive approach that 
     emphasized fat, which effectively de-emphasized the very 
     important consideration of total calories in a food. Though 
     well intentioned, this approach may have exacerbated dietary 
     problems.

  The highly prescriptive approach of the NLEA, combined with the Food 
and Drug Administration's (FDA) cumbersome approval process, have 
resulted in the agency often standing in the way of providing truthful, 
non-misleading information to consumers. FDA has lost every major First 
Amendment case regarding implementation of the NLEA. In the landmark 
decision, Pearson v. Shalala, 164 F.3d 650 (D.C. Cir. 1999), reh'g, en 
banc, denied, 172 F.3d 72 (D.C. Cir. 1999), the D.C. Circuit Court of 
Appeals even characterized

[[Page E1927]]

the government's defense of its stifling, moribund regulatory approach 
as ``almost frivolous.'' Our law and regulatory systems cannot continue 
to block or excessively delay delivery of truthful, non-misleading 
information to American consumers.

  To its great credit, the FDA has recently started to issue 
enforcement discretion letters. that indicate the agency would not take 
enforcement action against particular qualified health claims that it 
has determined are truthful and non-misleading, even though those, 
claims have not been approved pursuant to the excruciatingly slow NLEA 
process. While I have reservations about this approach, it is clearly a 
reasoned attempt to be less obstructive of truthful, non-misleading 
food label statements. For its part, this FDA initiative is likely to 
improve public health. However, it appears that Congress could do more.
  Some of these observations are not new. In 1997, Congress enacted the 
Food and Drug Administration Modernization Act (FDAMA), which provided 
for streamlined procedures for allowing certain products and claims to 
get to market. Simply put, FDA can say ``no'' with relative ease and 
speed, but has extensive clearance procedures with correspondingly long 
time requirements to say ``yes'' to any petition. So, FDAMA provided 
for notifications for indirect food additives, as well as for health 
claims and nutrient content claims based upon authoritative statements 
of certain scientific bodies or the National Academy of Sciences. Under 
that system, if FDA does not object to a notification within a 
specified period, the FDAMA requirements are deemed satisfied and the 
product or claim approved. Thanks to addition of these provisions, FDA 
has more expeditiously approved health claims that have provided 
consumers helpful information regarding the relationships between 
potassium and the risk of high blood pressure and stoke, and between 
whole grain foods and the risk of heart disease and certain cancers, as 
well as nutrient content claims identifying foods that are significant 
sources of choline and of DHA, EPA, and ALA, specific omega-3 fatty 
acids. Broader use of this concept must be considered if we are to 
continue to allow FDA to block a product or claim before it gets to 
market, but expect advances in science to reach market without delay 
that is unacceptably costly in terms of public health and capital 
investment.
  Finally, FDA pre-market responsibilities regarding foods are 
extensive and include a number of matters that are not critical to 
public health protection, such as temporary permits for test marketing 
of a food in contemplation of amending its regulatory standard of 
identity. Often, FDA has explained that they are not handling such 
matters with a responsible pace because they are low priorities. As a 
matter of public health protection, such prioritization makes sense. 
However, it is time for us to review provisions of law and regulation 
that require agency pre-market approvals regarding low priority 
matters. If pre-market regulatory scrutiny needs to be maintained 
regarding such matters, consideration should be given to substituting 
notification procedures for the dysfunctional processes in place at 
this time.
  Mr. Speaker, I share these observations so that my colleagues may 
consider them prior to initiating work of the next Congress and in 
hopes of stimulating debate on the subject.

                          ____________________