Big Sugar Tries Its ‘Sweet-talk’ on the FDA

By Joseph Gregorio, DePaul University College of Law-

On March 3, 2014, the FDA announced proposed changes to its nutrition facts panel (“NFP”). Of the several proposed modifications, the addition of an “added sugars” label may be the most controversial. The proposed “added sugars” label would be indented below the already standard “sugar” section, a subsection of the “carbohydrates” information. The FDA accepted comments on the proposed rule until June 2, and comments regarding information collection issues until August 2. There were several parties who provided comments, strongly opposing the “added sugars” label.

Although there is nothing inherently bad about sugar, over-consumption is a major issue in the United States. Many foods naturally contain sugar as part of their total package of nutrients. Many foods with added sugars often supply calories, but few or no essential nutrients or dietary fiber. Despite the disparity in the nutrition content that typically accompanies natural or added sugars, the body cannot differentiate between the two, and over-consumption of either can lead to dental problems, obesity, or other health issues.

The United States Department of Agriculture’s “Dietary Guidelines for Americans, 2010,” report that the majority of the sugar in the average American diet is added to foods “during processing, preparation, or at the table,” constituting around 16% of calories in the American diet. Sugars are usually added to make foods more palatable or to modify the foods’ functional attributes, such as preservation, viscosity, texture, body, and browning capacity. Most added sugars come from soda, energy, and sports drinks, grain-based deserts, sugar-sweetened fruit and juice drinks, dairy-based desserts, and candy. Assuming that added sugars are no more dangerous than natural sugars, they still represent “empty calories” in the American diet by displacing the consumption of nutrient-rich foods un-diluted by added sugars, solid fats, or refined grains. The USDA’s Guidelines recommend replacing foods high in added sugars with nutrient-rich foods to lower one’s caloric intake without compromising their nutrient intake.

Industry Opposition

The FDA believes that the proposed “added sugar” label will enable consumers to make dietary decisions in accordance with the USDA’s recommendation to replace foods high in added sugars with nutrient-rich foods. This label change, however, will only be successful if consumers actually: (1) read the NFP, (2) can comprehend the information displayed, and (3) will base at least some of their dietary decisions on the NFP information.

In June, Andy Briscoe, President and CEO of The Sugar Association, Inc. (“TSA”), gave public comments to the FDA recommending that they withdraw the proposed label. TSA is an organization of sugar companies, producers, and interest groups whose mission is to “promote the consumption of sugar through sound scientific principles while maintaining an understanding of the benefits that sugar contributes to the quality of wholesome foods and beverages.” TSA is not alone, six other organizations of food manufacturers, including the American Beverage Association, the American Baking Association, the American Frozen Foods Institute, and the Corn Refiners Association are opponents to the “added sugars” label.

Briscoe and the group of assorted food organizations are clearly concerned that the label could unnecessarily harm them and sugar industry as a whole. They argued that in addition to the new label misleading consumers, there was inadequate scientific evidence to support this change. Briscoe contended that the changes were based solely upon the USDA’s findings, which did not determine that added sugars displaced nutrient rich-foods. He also argued that requiring companies to keep this data would be a heavy financial burden.

The FDA conceded the lack of evidence regarding consumer response and comprehension when it first announced the proposed changes, but has since commenced research on this issue. In addition, the International Food Information Council (“IFIC”) submitted the results of its own study of consumer impact to the FDA. IFIC found that consumers were confused about what added sugars were, and the relationship between added sugars and calories. IFIC also found that the label led some consumers to think that the added sugars were separate and in addition to the “total sugars” listed above.

Briscoe also challenged the nutritional basis of the “added sugars” label by claiming that “no authoritative science body,” such as the Institute of Medicine (“IOM”), had found a need to set upper limits on added sugar intake. Nevertheless, the average American consumes twice the daily amount of sugar recommended by the IOM and the obesity epidemic is rather unique to the United States. Although it is widely accepted that too much sugar can contribute to obesity and dental problems, it seems that there are conflicting opinions regarding the negative health effects of “added sugars” upon one’s diet. The FDA also received comments from groups supporting the change, such as the Center for Science and Democracy at the Union of Concerned Scientists, which highlighted the dangers of extreme sugar consumption.

The intense opposition from the sugar industry may stem from fears of consequences similar to those after the FDA required the labeling of trans-fatty acids in foods. The “added sugars” label may have been a compromise by the FDA from requests to set limits on the amount of sugars that can be added to foods. Although there is no scientific agreement concerning the negative health consequences of added sugars, the sugar industry has been repeatedly accused of controlling and skewing the results of research studies. There are also ethical barriers in conducting highly controlled studies that require participants to consume products that are potentially detrimental to their health.

Future Implications

Although the comment period ended August 1, the controversy regarding the “added sugar” label is far from settled and industry opponents have made it clear that they will not back down. It remains unclear whether consumers will be confused by the new “added sugars” label. If a consumer is concerned enough to read the NFP while making their dietary decisions, he or she will likely know how to interpret the NFP. Likewise, non-nutritionally-conscious consumers are less likely to consult the NFP to begin with, and may not be deterred by the existence of added sugars in their food.

If the FDA implements the “added sugars” section, it will almost certainly impact the sugar industry. The FDA expects compliance within two years of announcing its final rule, leaving plenty of time for parties to appeal the rules. Some say that the requirement may violate the first amendment by compelling speech. But the rights of the food industry must be weighed against the consumer’s right to know what is in their food.

Joseph Gregorio is a student at DePaul University College of Law and is expected to graduate in May of 2016. Previously he studied psychology at Western Illinois University. He is a staffer for the DePaul Law Review and a contributor to the DePaul Health Law Institute’s E-Pulse blog.