FTC Staff Comment Before Department of Agriculture Food and Safety Inspection Services In the Matter of Nutrition Labeling of Meat and Poultry Products; Proposed Rule

COMMISSION 	AUTHORIZED
SERVICES
•
.
, 	V920008
'
BEFORE 	THE
DEPARTMENT 	OF 	AGRICULTURE
FOOD 	SAFETY 	AND 	INSPECTION
In 	The 	Matter 	of 	)
)
) 	Docket 	No. 	91-006P
Nutrition 	Labeling 	of
Meat 	and 	Poultry 	Products;
Proposed 	Rule
)
)
)
Comments 	of 	the 	Staffs 	of
the 	Bureaus 	of 	Economics 	and 	Consumer 	Protection
of 	the 	Federal 	Trade 	Commission
February 	25, 	1992
*These 	comments 	are 	the 	views 	of 	the 	staffs 	of 	the 	Bureaus
of 	Consumer 	Protection 	and 	Economics 	of 	the 	Federal 	Trade
Commission. 	They 	do 	not 	necessarily 	represent 	the 	views 	of 	the
Commission 	or 	any 	individual 	Commissioner. 	Inquiries 	regarding
this 	comment 	should 	be 	directed 	to 	Anne 	Maher 	(202-326-2987),
Bureau 	of 	Consumer 	Protection 	or 	Alan 	Mathios 	(202-326-3495),
Bureau 	of 	Economics.

I. 	INTRODUCTION AND SUMMARY
The 	United 	States 	Department 	of 	Agriculture 	(USDA) 	has
issued 	proposed 	regulations 	for 	the 	nutrition 	labeling 	of 	meat
and 	poultry 	products 	and 	has 	requested 	comments 	on 	various
aspects 	of 	these 	proposals. 1 These 	proposals 	largely 	parallel
those 	proposed 	by 	the 	Food 	and 	Drug 	Administration 	(FDA). 	The
Nutrition 	Labeling 	and 	Education 	Act 	of 	1990 	(NLEA)2 	requires
the 	Secretary 	of 	Health 	and 	Human 	Services, 	through 	the 	Food 	and
Drug 	Administration 	(FDA), 	to 	make 	sweeping 	changes 	in 	the
regulations 	governing 	food 	labels. 	Under 	a 	tight 	time 	schedule,
FDA 	has 	pUblished 	over 	500 	pages 	of 	proposed 	regulations 	for 	food
labels 	implementing 	these 	requirements 	and 	has 	requested 	comments
on 	many 	aspects 	of 	these 	proposals. 3 Based 	on 	our 	experience 	in
analyzing 	the 	effects 	of 	information 	in 	consumer 	product markets
and 	in 	considering 	regulations 	that 	address 	information 	issues,
the 	staffs 	of 	the 	Bureau 	of 	Consumer 	Protection 	and 	the 	Bureau 	of
Economics 	of 	the 	Federal 	Trade 	Commission 	(FTC) 	offer 	the
following 	comments 	to 	assist USDA 	in 	its 	deliberations. 4
56 	Fed. 	Reg. 	at 	60,302-364.
2 Pub. 	L. 	No. 	101-535, 	104 	Stat. 	2353 	(1990) (codified 	in
pa rt 	at 	21 	U. S . C. 	§ § 	343 ( i) (q) , (r) ) .
3 56 	Fed. 	Reg. 	60,365-891 	(1991) (to 	be 	codified 	at 	21
C.F.R. 	Part 	101, 	et 	al.).
4 	These 	comments 	are 	the 	views 	of 	the 	staffs 	of 	the 	Bureaus
of 	Consumer 	Protection 	and 	Economics 	of 	the 	Federal 	Trade
Commission. 	They 	do 	not 	necessarily 	represent 	the 	views 	of 	the
Commission 	or 	any 	individual 	Commissioner.
1

The 	FTC 	enforces 	sections 	5 	and 	12 	of 	the 	Federal 	Trade
Commission 	Act, 	prohibiting 	deceptive 	or 	unfair 	practices 	in 	or
affecting 	commerce. s One 	of 	the 	FTC's 	major 	responsibilities 	is
to 	regulate 	national 	advertising, 	and 	historically, 	the 	FTC 	has
considered 	the 	prevention 	of 	deceptive 	food 	advertising 	to 	be 	of
utmost 	importance. 	At 	the 	same 	time, 	the 	FTC 	appreciates 	that
food 	advertising 	can 	effectively 	provide 	useful 	nutrition
information 	to 	consumers. 	The 	FTC 	has 	developed 	considerable
expertise 	in 	understanding 	the 	roles 	of 	advertising 	and 	labeling
in 	providing 	consumers 	with 	information,6 	and 	regularly
considers 	such 	issues 	in 	food 	advertising. 	While 	we 	recognize
that 	there 	are 	important 	differences 	between 	claims 	on 	food
labels 	and 	those 	in 	advertising 	that may 	require 	different
S 15 	U.S.C. 	§§ 	45 	et 	seg. 	The 	FTC 	has 	jurisdiction 	over
the 	advertising 	of 	food 	and 	has 	concurrent 	jurisdiction with 	FDA
and 	USDA 	over 	the 	labeling 	of 	food. 	The 	FTC 	also 	has 	statutory
authority 	to 	enforce 	a 	number 	of 	laws 	that 	mandate 	disclosure,
including 	the 	Federal 	Cigarette 	Labeling 	and 	Advertising 	Act, 	the
Truth 	in 	Lending 	Act, 	and 	the 	Energy 	Policy 	and 	Conservation 	Act,
which 	regulates 	appliance 	labeling, 	and 	to 	enforce 	several 	laws
relating 	to 	standard-setting, 	including 	the 	Wool 	Products
Labeling Act 	and 	the 	Magnuson-Moss 	Warranty 	& FTC 	Improvement
Act. 	In 	addition, 	the 	FTC 	has 	promulgated 	disclosure 	rules, 	such
as 	the 	R-Value 	Rule, 	which 	regulates 	thermal 	insulation 	labeling,
the 	Used 	Car 	Rule, 	which 	requires 	warranty 	disclosures, 	and 	the
Care 	Labeling 	Rule, 	which 	regulates 	clothing 	labeling.
6 Relevant 	FTC 	staff 	research 	includes: 	P. "'Ippolito 	& A.
Mathios, 	Health 	Claims 	in 	Advertising 	and 	Labeling: 	A Study 	of
the 	Cereal 	Market 	(1989); 	M. 	Lynch, 	R. 	Miller, 	C. 	Plott 	& W.
Porter, 	Experimental 	studies 	of 	Markets 	with 	Buyers 	Ignorant 	of
Quality 	Before 	Purchase: 	When 	do 	'Lemons' 	Drive 	Out 	High 	Quality
Products? 	(1986); 	M. 	Frankena, 	M. 	Cohen, 	T. 	Daniel, 	L. 	Ehrlich,
N. 	Greenspun 	& D. 	Keenan, 	Alcohol. 	Advertising. 	Consumption. 	and
Abuse, 	(1985).
2

regulatory 	approaches,7 we 	believe 	our 	expertise 	has 	a 	bearing
on 	many 	of 	the 	issues 	the 	proposed 	regulations 	have 	addressed.
The 	regulations 	proposed by USDA 	largely 	adopt 	those
proposed 	by 	FDA 	and 	this 	comment 	briefly 	summarizes 	the
recommendations 	in 	our 	comment 	submitted 	to 	FDA. 8 We 	have
attached 	as 	an 	appendix 	the 	FDA 	comment, 	which 	contains 	the
analyses 	that 	serve 	as 	the 	basis 	for 	the 	recommendations
presented 	below.
Our 	analysis 	is 	founded 	on 	the 	premise 	that 	consumers 	can
improve 	their 	diets 	in 	two 	ways. 	First, 	they 	can 	switch 	from
foods 	they 	are 	currently 	eating 	to 	the 	healthiest 	foods 	that 	are
available 	(~, 	substituting vegetables 	and 	fruit 	for 	high 	fat
desserts). 	Second, 	consumers 	can 	switch 	to 	more 	nutritious
versions 	of 	the 	foods 	they 	are 	currently 	eating 	(~,
substituting 	lean meats 	or 	chicken 	for 	fatty 	meats). 	If, 	as 	a
recent 	survey 	shows,9 many 	consumers 	are 	unlikely 	to 	give 	up
their 	favorite 	foods 	in 	order 	to 	improve 	their 	diets, 	then
switching 	to 	healthier 	versions 	of 	those 	favorite 	foods 	may 	prove
especially 	important. 	This 	comment 	analyzes 	how 	the 	proposed
7 See 	Letter 	from 	Federal 	Trade 	Commission 	to 	Senator 	Slade
Gorton, 	September 	25, 	1991. 	~.
8 USDA's 	proposals 	differ 	from 	FDA's 	in 	some 	aspects. 	For
example, 	USDA 	proposes 	to 	adopt 	voluntary 	labeling 	for 	many 	raw
meat 	and 	poultry 	products, 	and 	proposes 	to 	adopt 	the 	additional
defined 	terms 	"lean" 	and 	"extra 	lean."
9 Survey 	of 	American 	Dietary 	Habits, 	The 	American 	Dietetic
Association 	(1991) 	at 	12.
3

regulations 	likely would 	affect 	consumers' 	ability 	to 	make more
informed 	choices 	for 	both 	types 	of 	dietary 	change.
Another 	premise 	of 	this 	comment 	is 	that 	nutrient 	claims 	on 	a
package's 	front 	label 	serve 	a 	different 	function 	than 	information
on 	the 	label's 	nutrition 	panel. 	For 	example, 	a 	nutrition 	panel
on 	the 	back 	of 	a 	package 	may 	provide 	useful 	information, 	but 	may
be 	relatively 	ineffective 	in 	generating 	consumer 	interest 	in 	a
new 	and 	innovative 	product. 	Truthful 	nutrient 	claims 	on 	the
front 	of 	the 	package, 	however, 	may 	be 	helpful 	in 	alerting
consumers 	to 	more 	healthful 	products 	they might 	consider 	in
efforts 	to 	improve 	their 	diets. 	Thus, 	this 	comment 	also 	examines
how 	the 	proposed 	regulations 	will 	help 	consumers 	find 	better
products, 	and 	how 	this 	could 	affect 	innovation 	in 	food 	markets.
Much 	of 	what 	USDA 	proposes 	will 	provide valuable 	information
to 	consumers. 	However, 	in 	some 	respects 	the 	regulations 	go
beyond 	the 	NLEA 	statutes 	and 	may 	have 	unintended 	undesirable
effects. 	We 	believe 	that 	USDA 	and 	FDA 	should 	consider 	changes
that 	could 	enhance 	the 	regulations' 	effectiveness; 	these 	are
summarized 	below 	and 	are 	discussed 	in 	more 	detail 	in 	the 	attached
FDA 	comment.
A. 	Nutrient 	Content 	Claims
As 	required 	by 	the 	NLEA, 	FDA 	proposes 	definitions 	for 	terms
that 	companies 	must 	use 	to 	characterize 	the 	leve"i 	of 	a 	nutrient
in 	a 	food. 10 The 	proposed 	definitions 	for 	absolute 	nutrient
10 	See 	Section 	3(b) (1) (A) (iii), 	104 	Stat. 	at 	2361
(regulations 	for 	the 	implementation 	of 	21 	U.S.C. 	§ 	343(r)).
4

content 	claims 	(those 	that 	do 	not 	refer 	to 	other 	products), 	such
as 	"low," 	"high" 	and 	"free," 	would 	provide 	clarity 	and 	certainty
through 	the 	use 	of 	simple 	terms 	that 	highlight 	foods 	with 	the
lowest 	(or 	highest) 	levels 	of various 	nutrients. 	These 	claims
should 	be 	helpful 	to 	consumers 	attempting 	to 	identify 	such 	foods.
However, 	definitions 	for 	absolute 	nutrient 	content 	claims 	are
based 	on 	uniform 	standards 	that 	apply 	across 	all 	food 	groups, 	and
most 	foods, 	including many 	that 	can 	help 	consumers 	improve 	their
diets, 	would 	not 	meet 	the 	standards 	in 	these 	"low" 	and 	"high"
definitions. 	Thus, 	we 	believe 	it 	is 	important 	that 	other 	terms
be 	defined, 	so 	that 	foods 	that 	may 	be 	useful 	in 	dietary
improvement 	but 	do 	not 	meet 	the 	"low" 	or 	"high" 	standards 	may
have 	a 	simple 	way 	to 	feature 	their 	nutritional 	advantages.
USDA 	proposes 	to 	adopt 	FDA's 	definitions 	for 	these 	terms,
but 	also 	proposes 	definitions 	for 	two 	additional 	descriptors,
"lean" 	and 	"extra 	lean," 	for 	meat 	and 	poultry 	products. 	We 	agree
with 	this 	approach. 	It 	avoids 	the 	potential 	for 	consumer
confusion 	that 	might 	result 	from 	adopting 	different 	definitions
for 	the 	absolute 	nutrient 	content 	claims 	established 	by 	FDA, 	yet
allows 	firms 	to 	use 	other 	defined 	terms 	to 	identify 	the 	healthier
types 	of 	meat 	and 	poultry.
The 	proposed 	regulations 	would 	prohibit 	manufacturers 	of
food 	products 	that 	do 	not 	meet 	the 	"low" 	or 	"hicj'h" 	thresholds
from 	simply 	featuring 	the 	amount 	of 	a 	nutrient 	on 	the 	labels 	for
these 	products. 	Thus, 	for 	example, 	claims 	such 	as 	"50 	calories
per 	serving" 	or 	"6 	grams 	of 	fat 	per 	serving" 	are 	prohibited 	on
5

the 	front 	label, 	even 	though 	this 	information 	appears 	on 	the
mandatory 	nutrition 	label.
Such 	a 	prohibition would 	eliminate many 	factual 	claims 	on
the 	front 	label 	that 	could 	help 	consumers 	make 	better 	food
choices 	and 	increase 	producers' 	incentives 	to 	improve 	the
nutritional 	composition 	of 	their 	products. 	For 	example, 	under
the 	proposed 	regulations, 	virtually 	no 	lean meat 	and 	poultry
products 	could 	point 	out 	the 	grams 	of 	fat 	or 	saturated 	fat, 	or
milligrams 	of 	cholesterol 	on 	product 	labels. 	At 	a 	minimum, 	given
that 	USDA 	proposes 	to 	define 	the 	additional 	terms 	"lean" 	and
"extra 	lean," 	USDA 	should 	permit 	statements 	of 	the 	amount 	of 	a
nutrient 	in 	a 	food 	for 	foods 	that 	meet 	the 	"lean" 	or 	"extra 	lean"
thresholds. 	Optimally, 	we 	believe 	that 	the 	proposed 	regulations
should 	authorize 	simple 	statements 	of 	the 	amount 	of 	a 	nutrient 	in
any 	food, 	unless 	there 	is 	reason 	to 	believe 	that 	in 	a 	particular
circumstance 	such 	a 	declaration 	is 	likely 	to mislead 	consumers.
Because 	few 	labels 	could 	feature 	simple, 	absolute 	nutrient
content 	claims, 	relative 	claims 	(i.e., 	those 	that 	explicitly make
comparisons 	with 	other 	products), 	such 	as 	"reduced" 	and 	"less"
could 	become 	the 	most 	important 	way 	labels 	encourage 	dietary
changes 	and 	stimulate 	innovation 	and 	competition 	on 	nutrition.
The 	proposed 	regulations 	would 	require 	lengthy 	disclosures,
requiring 	that 	all 	relative 	claims 	identify 	the'comparison 	food
and 	provide 	several 	pieces 	of 	information 	on 	the 	characteristics
of 	the 	two 	foods. 11 While 	this 	approach 	would 	provide 	added
11 See 	56 	Fed. 	Reg. 	at 	60,446.
6

information 	if 	such 	claims 	are 	made, 	the 	proposed 	disclosures
appear 	to 	be 	so 	extensive 	that 	they may 	discourage many 	claims,
especially 	those 	that 	compare 	products 	on 	several 	nutrient
dimensions. 	since 	the 	proposed 	disclosures, 	in 	part, 	duplicate
information 	available 	in 	the 	mandatory 	nutrition 	panel, 	we
question 	whether 	the 	added 	convenience 	of 	having 	the 	disclosures
in 	two 	places 	on 	the 	product's 	label 	is 	worth 	the 	potential 	loss
of 	the 	truthful 	claims 	likely 	to 	be 	discouraged 	as 	a 	result 	of
including 	the 	information 	twice.
The 	proposed 	regulations 	for 	relative 	claims 	would 	also
limit 	which 	products 	may 	be 	compared. 	The 	proposals 	aim 	to
eliminate 	trivial 	or 	irrelevant 	comparisons 	by 	requiring 	that
products 	achieve 	minimum 	absolute 	and 	percentage 	reductions
before 	qualifying 	to 	make 	particular claims 	and 	by 	restricting
the 	foods 	against 	which 	comparisons 	may 	be 	made. 12 These
provisions 	may 	eliminate many 	objective 	comparisons 	that 	could
help 	consumers 	select more 	nutritious 	foods 	and 	may, 	therefore,
unnecessarily 	limit 	the 	flow 	of 	useful 	nutrition 	information 	to
consumers. 	For 	example, 	the 	rules 	would 	not 	allow 	brand-to-brand
comparisons 	(~, 	"our meat 	entree 	has 	25% 	fewer 	calories 	than
brand 	x"), 	comparisons 	across 	food 	groups 	(~, 	"our 	chicken
without 	the 	skin 	instead 	of 	hamburger 	saves 	you 	8 	grams 	of 	fat"),
or 	clear 	comparisons 	that 	are 	below 	the 	threshold 	amounts 	(~,
"30 	calories 	less 	than 	our 	regular 	sliced 	chicken 	breast which
12 See 	id. 	at 	60,445-47.
7

contains 	120 	calories"). 	Such 	limitations 	are 	not 	required 	by
the 	NLEA.
The 	proposed 	regulations 	contain 	an 	alternative 	approach 	to
relative 	claims 	that 	would 	retain 	the 	minimum 	absolute 	difference
requirement 	and 	most 	of 	the 	restrictions 	on 	the 	types 	of 	foods
that 	can 	be 	compared, 	but 	eliminate 	the 	minimum 	percentage
difference 	requirements. 13 We 	believe 	that 	eliminating 	the
minimum 	percentage 	difference 	is 	an 	improvement, 	but 	remain
concerned 	that 	the 	alternative 	proposal 	would 	still 	prohibit
brand-to-brand 	comparisons, 	comparisons 	across 	food 	groups, 	and
clearly 	stated 	comparisons 	for 	products 	where 	the 	nutrient
difference 	between 	them 	is 	below the 	threshold 	amounts. 	We
believe 	that 	relative 	claims 	that 	numerically 	disclose 	the
difference 	between 	products 	in 	a 	nonmisleading way would 	meet 	the
requirements 	of 	the 	NLEA. 	Such 	an 	approach 	would 	allow many 	more
truthful 	claims 	than 	the 	current 	proposal, 	and 	still 	be 	effective
in 	controlling 	deceptive 	and 	misleading 	claims.
Finally, 	the 	proposed 	regulations 	would 	require 	that 	"a
nutrient 	content 	claim 	be, 	in 	type 	size 	and 	style, 	no 	larger 	than
that 	of 	the 	statement 	of 	identity.,,14 	While we 	appreciate 	the
concern 	that 	single 	nutrients 	can 	be 	overemphasized, 	we 	suggest
13 	a"
Under 	this 	alternative 	proposal 	the 	terms 	"reduced" 	and
"less" 	could 	be 	used 	interchangeably. 	Use 	of 	either 	term would
require 	that 	the 	food 	be 	compared with 	an 	accepted 	reference 	food
and 	that 	the 	difference 	in 	the 	amount 	of 	the 	nutrient 	between 	the
reference 	food 	and 	the 	product 	with 	the 	claim meet 	or 	exceed 	the
"low" 	threshold 	for 	that 	nutrient.
14 56 	Fed. 	Reg. 	at 	60,424.
8

that 	this 	proposal 	be 	reconsidered. 	Style 	and 	format 	play 	an
important 	role 	in 	effective 	marketing, 	which 	is 	critical 	to
bringing 	information 	to 	consumers' 	attention, 	and 	to 	successful
product 	innovation.
B. 	Health 	Claims
USDA 	states 	that 	it 	intends 	to 	publish 	a 	separate 	proposed
regulation 	on 	health 	claims 	that 	would 	follow 	FDA's 	proposals 	in
' 	15
th 	area. 	We 	agree 	with 	FDA 	that 	claims 	that 	truthfully	~s
relate 	the 	health 	reasons 	for 	better 	food 	choices 	are 	potentially
very 	important 	to 	consumers, 	and 	that 	developing 	regulations 	for
health 	claims 	are 	among 	the 	most 	important 	challenges 	in 	the
efforts 	to 	redefine 	the 	regulations 	governing 	food 	labels. 	We
believe, 	however, 	that 	there 	are 	a 	number 	of 	ways 	in which 	the
proposed 	regulations 	could 	be 	modified 	to 	enhance 	their 	ultimate
success. 	We 	are 	concerned 	that 	the 	proposed 	regulations 	are 	more
restrictive 	than 	are 	necessary 	to 	comply with 	the 	NLEA's 	mandate
and 	in 	several 	ways 	could 	prevent 	truthful 	health 	claims 	for 	many
products 	whose 	consumption 	has 	been 	encouraged 	for 	health 	reasons
by 	dietary 	authorities.
Under 	the 	proposed 	regulations, 	many 	foods 	may 	be 	labeled
with 	relative 	nutrient 	content 	claims, 	but 	may 	not 	contain 	health
claims 	on 	their 	labels. 	Nonetheless, 	FDA 	Diet 	and 	Health
16'	'. 	17
surveys 	and 	the 	FTC 	staff's 	study 	of 	the 	cereal 	market
15 See 	56 	Fed. 	Reg. 	at 	60,321.
16 These 	are 	national 	telephone 	surveys 	directed 	by 	the 	FDA
in 	collaboration 	with 	the 	National 	Heart, 	Lung, 	and 	Blood
(continued ... )
9

indicate 	that 	relative 	nutrient 	claims 	alone 	are 	unlikely 	to
educate 	consumers 	about 	diet 	and 	disease 	relationships.
Moreover, 	FDA 	surveys 	show 	that 	even 	many 	highly 	educated
consumers 	lack 	knowledge 	of 	the 	most 	basic 	diet-disease
relationships. 	Consumers 	who do 	not 	know why 	a 	particular
nutrient 	is 	important 	appear 	less 	likely 	to 	react 	to 	nutrient-
content 	claims 	than 	consumers 	who 	understand 	the 	disease
implications 	of 	the 	particular 	nutrient.
The 	proposed 	regUlations 	would 	establish 	"disqualifying
nutrient 	levels" 	for 	total 	fat, 	saturated 	fat, 	cholesterol 	and
sodium. 	A product 	that 	exceeds 	the 	disqualifying 	level 	for 	any
of 	these 	nutrients 	(on 	the 	basis 	of 	serving 	size, 	reference
amount, 	or 	per 	100 	grams 	of 	food) 	could 	not 	bear 	a 	health 	claim
about 	any 	diet-disease 	issue. 18 The 	regUlations 	would 	further
require 	that 	foods 	satisfy 	the 	definition 	of 	"low" 	or 	"high" 	for
the 	nutrient 	involved 	in 	the 	claim. 19
16 ( ••• continued)
Institute 	(NHLBI). 	For 	a 	detailed 	description 	of 	the 	survey, 	see
Levy 	and 	Stephenson 	(1990), 	"Nutrition 	Knowledge 	Levels 	About
Dietary 	Fats 	and 	Cholesterol: 	1983-1988:" 	Draft, 	Division 	of
Consumer 	Studies, 	FDA.
17 Ippolito 	& Mathios, 	supra 	note 	6.
18 These 	levels 	implement 	the 	NLEA's 	requi~ement that
health 	claims 	be 	used 	only 	for 	a 	food 	that 	does 	not 	contain 	any
nutrient 	in 	an 	amount 	that 	increases 	to 	persons 	in 	the 	general
population 	the 	risk 	of 	a 	disease 	or 	health-related 	condition 	that
is 	diet 	related, 	taking 	into 	account 	the 	significance 	of 	the 	food
in 	the 	total 	daily 	diet. 	21 	U.S.C. 	§ 	343(r) (3) (A) (ii).
19 This 	additional 	provision 	does 	not 	appear 	to 	be 	required
by 	the 	NLEA.
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Many 	foods 	that 	can 	improve 	diet, 	including 	foods 	that
dietary 	authorities 	recommend 	to 	consumers, 	could 	not 	meet 	the
requirements 	for 	health 	claims, 	and 	thus 	labels 	for 	these
products 	could 	not 	explain 	the 	health 	reasons 	for 	considering
them. 	There 	are 	several 	aspects 	of 	the 	proposals 	that 	raise
concerns, 	because 	they 	might 	undermine 	the 	goals 	that 	underlie
USDA's 	health 	claims 	policy.
First, 	the 	proposed 	cholesterol 	disqualifying 	level 	appears
to 	be 	based 	on 	behavioral 	assumptions 	about 	consumption 	patterns
that 	are 	not 	borne 	out 	by 	USDA 	consumption 	data, 	so 	that 	health
claims 	for 	lower 	fat 	meat 	and 	poultry 	products 	that 	would
otherwise 	not 	be 	disqualified 	may 	be 	excluded 	unnecessarily.
Second, 	in 	addition 	to 	prohibiting 	health 	claims 	when 	the
levels 	of 	particular 	nutrients 	exceed 	the 	disqualifying 	levels,
the 	proposed 	regulations 	go 	beyond 	the 	NLEA 	and 	require 	foods
that 	otherwise 	could 	bear 	health 	claims, 	also 	to 	meet 	the 	"low"
or 	"high" 	thresholds 	for 	the 	nutrient 	in 	the 	claim. 	This
proposed 	requirement 	would 	prevent 	producers 	of 	meat 	and 	poultry
from 	explaining 	how 	their 	products 	could 	help 	consumers 	improve
their 	diets. 	For 	example, 	this 	requirement 	prohibits 	the 	lowest
fat 	meat 	and 	poultry 	products 	from 	having 	labels 	that 	explain 	why
consumers 	should 	care 	about 	switching 	from 	high 	fat 	meats 	to
lower 	fat 	alternatives. 	Under 	the 	proposals, 	the 	vast 	majority
of 	meat 	and 	poultry 	products 	in 	the 	American 	diet 	will 	be
prohibited 	from 	displaying 	messages 	about why 	consumers 	seeking
dietary 	improvements 	should 	care 	about 	the 	fat, 	saturated 	fat,
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and 	cholesterol 	content 	in 	the 	products 	they 	buy. 	Thus, 	a
manufacturer 	could 	not 	explain 	why 	consumers 	should 	care 	about
the 	reduction 	in 	fat 	and 	saturated 	fat 	that 	would 	occur 	if 	a
consumer were 	to 	substitute 	chicken 	without 	the 	skin 	for
hamburger. 	At 	a 	minimum, 	we 	believe USDA 	should 	permit 	foods
that 	meet 	the 	"lean" 	or 	"extra 	lean" 	thresholds 	to 	have 	health
claims 	on 	their 	labels, 	provided 	they 	meet 	the 	other 	requirements
of 	the 	NLEA. 	Optimally, 	we 	would 	recommend 	that 	the 	regulations
not 	require 	foods 	to 	meet 	the 	"lean" 	or 	"extra 	lean" 	threshold 	in
order 	to 	bear 	a 	health 	claim. 	Instead, 	we 	suggest 	that 	the
proposed 	regulations 	allow 	truthful 	comparative 	health 	claims 	for
food 	substitutions 	that 	could 	help 	consumers 	improve 	their 	diets.
Finally, 	we 	recommend 	that 	the 	regulations 	treat 	references
to 	dietary 	guidance 	from 	public 	health 	authorities 	(~, 	the
National 	Institutes 	of 	Health 	and 	the 	Surgeon 	General) 	not 	as
health 	claims, 	but 	as 	claims 	analyzed 	under 	FDA's 	general
regulatory 	requirement 	that 	a 	label 	claim be 	truthful 	and
nonmisleading. 	Public 	health 	organizations 	can 	be 	more 	effective
in 	reaching 	consumers 	with 	valuable 	advice 	if 	products 	that 	fit
into 	their 	recommendations 	are 	free 	to 	display 	this 	information
on 	labels. 	Additionally, 	consumers 	are 	more 	likely 	to 	notice 	and
appreciate 	the 	significance 	of 	dietary 	recommendations 	if 	they
come 	from 	respected 	public 	health 	organizations:
In 	conclusion, 	we 	appreciate 	the 	opportunity 	to 	provide
these 	comments, 	and 	we 	welcome 	questions 	and 	further 	discussion.
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