Be Warned: A Proposal to Reform Food Product Disclosure Statements

Be Warned: A Proposal to Reform Food Product Disclosure Statements

By Gideon Zvi Palte, J.D. ’18[*]

I. Introduction

Dietary choices can have a significant effect on health.[1] Moderate reduction in salt consumption can reduce the risk of cardiovascular disease, stroke, and coronary heart attack.[2] High cholesterol has been identified as a major contributor to coronary heart disease, heart attacks, and strokes.[3] Reducing fat intake can contribute to weight loss.[4]

The societal prevalence of health conditions can have sizeable economic effects. The World Health Organization has identified a push to reduce salt intake as one of the most cost-effective population health measures that countries can implement.[5] Obesity costs the United States health care system $147 billion annually.[6]

The impact of dietary choices on health and the costs of chronic health conditions have led other countries to implement front-of-package food labeling requirements to warn consumers of high levels of specific nutrients in food products. Ecuador requires food products to display red, yellow, and green warning icons to indicate sugar, fat, and sodium contents.[7] Chile has implemented aggressive food labeling reforms to combat national obesity rates that are lower than such rates in the United States.[8]

The United States does not require comparable warnings of the risk of high contents of specific nutrients in food products. Although federal regulations identify fat, saturated fat, cholesterol, and sodium as nutrients that have the potential to increase the risk of a diet-related disease or health condition,[9] food products that contain these “health-risk nutrients”[10] in potentially dangerous quantities are not required to provide consistent or clear warning to consumers.

Food products are required to display disclosure statements to warn consumers of potentially dangerous health-risk nutrient contents only when those food products make a nutrient content claim[11] that characterizes the level of a nutrient in the food (e.g., “high in fiber”).[12] Because nutrient content claims are voluntarily included on food products,[13] food manufacturers can easily avoid the requirement to include a disclosure statement to warn of potentially dangerous health-risk nutrient contents by choosing not to display nutrient content claims on their packaging. Consumers therefore receive inconsistent notice of potentially dangerous health-risk nutrient contents in food products. Moreover, consumers do not receive clear notice of potentially dangerous health-risk nutrient contents because disclosure statements do not explicitly state that the food product poses a health risk due to its content of the health-risk nutrient.[14]

The shortcoming of the disclosure statement in providing consistent and clear notice of potentially dangerous health-risk nutrient contents in foods stems from its initial enactment alongside referral statements, which were intended to refer consumers to the Nutrition Facts label whenever a food product made a nutrient content claim.[15] The referral statement and disclosure statement requirements were enacted together as part of the Nutrition Labeling and Education Act of 1990 (“NLEA”),[16] which required standardized nutrition information on food product packaging for the first time.[17] Referral statements served to remind consumers to consult the newly required comprehensive nutrition information, instead of nutrient content claims that food manufacturers voluntarily included on food packaging, to learn about the nutrient contents of foods.[18] However, this requirement was abrogated with the passage of the Food and Drug Administration Modernization Act of 1997 (“FDAMA”),[19] leaving only disclosure statements, which are required to accompany nutrient content claims when food products contain health-risk nutrients at potentially dangerous levels.[20]

This Article proposes reforming disclosure statements to provide consistent and clear notice of potentially dangerous levels of health-risk nutrients in foods. The proposal would make disclosure statements (1) mandatory irrespective of the presence or absence of nutrient content claims and (2) explicit in indicating that the food products to which they apply contain health-risk nutrients in a quantity that poses a health risk.

The Article will first review the history of the legal requirement of disclosure statements in the United States and describe the current requirement and its shortcomings. Next, the Article will explore a private sector food labeling initiative in the United States and the regulatory approaches adopted by Chile and Ecuador to warn consumers of high contents of specific nutrients in foods. It will then discuss the importance of mandatory clear and accurate food labeling in addressing diet-related diseases and facilitating informed consumer decisions. Finally, the Article will propose a statutory reformation of disclosure statements in order to give consumers consistent and clear notice of contents of health-risk nutrients in food products that pose a health risk, followed by an analysis of the constitutional permissibility of the proposal.

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Desmond’s Law: Imprecise Language Makes for Inadequate Advocacy

Desmond’s Law: Imprecise Language Makes for Inadequate Advocacy

Nila Bala[*]

 

In 2016, Connecticut was lauded for becoming the first state to pass legislation allowing for an animal advocate to be appointed in animal cruelty cases.[1] The legislation, called “Desmond’s Law,” was named for a boxer-pit bull mix that was abused and strangled to death by Alex Wullaert in Branford, Connecticut.[2] Desmond’s body was found in a trash bag in the woods, emaciated, bruised, and starved.[3] Wullaert received accelerated rehabilitation, which meant that his charges were dismissed and his record was wiped clean.[4] In response to Wullaert’s sentence, animal activists, calling themselves “Desmond’s Army,” rallied for animals to have a voice in court.[5]

News outlets have reported that Connecticut’s new law is similar to laws that appoint attorneys for the children and the infirm.[6] National Public Radio, for example, expressed that Connecticut is “the first state to provide animals with court-appointed advocates to represent them in abuse and cruelty cases, similar to laws that provide for victims’ or children’s advocates.”[7] Similarly, The New York Times described the law appointing “advocates for dogs and cats” as part of “a rising movement in the criminal justice system” that “has placed an emphasis on giving more of a voice to and adding support for crime victims,” such as “in cases involving children and the infirm.”[8]

However, Desmond’s Law differs significantly from the laws that appoint advocates for children and vulnerable victims. Unlike those laws, advocates under Desmond’s Law do not represent the animal.[9] According to the statute’s text, the advocate, who is a volunteer attorney or supervised law student, may “present information or recommendations to the court pertinent to determinations that relate to the interests of justice.”[10]

This Article examines why lawmakers chose to word the statute to protect the “interests of justice” rather than the animal’s interests and will argue that it was motivated by the historical underpinnings of the animal rights movement. While Desmond’s Law is an important first step in protecting animal welfare, this Article also explores the real drawbacks that the wording will present in animal cruelty cases.

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It is All About the Money: Presidential Conflicts of Interest

It is All About the Money: Presidential Conflicts of Interest

By Samantha Block[*]

The 2016 presidential election marked an increased distrust in the government, bringing a new era of presidential and vice presidential candidates. Current conflict of interest laws do not extend to the President and Vice President due to an outdated fear of interfering with their Article II constitutional powers. While conflicts of interest are not unique to the 21st century, the 2016 election brought about unprecedented conflicts. The 2016 election was unique—President Donald Trump was the first President in decades to refuse to remove notions of financial conflicts of interest. Trump’s acquisitions abroad have led to accusations of bias and bribery along with the fear that U.S. foreign policy will be influenced by his self-interest. Trump touted his conflicts making it clear that current laws are ineffective and outdated. This Article proffers that conflict of interest laws need to extend to the President and Vice President. First, this Article will explain why presidential conflicts of interest were previously not explicitly outlawed. This Article will then discuss current conflicts of interest laws and tools for managing these conflicts. This Article proposes a new law that would apply to presidential and vice presidential candidates which would require them to create a qualified blind trust. Additionally, this Article will explain why the Office of Government Ethics should be charged with overseeing the enforcement of this regulation.

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Don’t Hold Your Breath: Furthering the Fight Against Drunken Driving Until Autonomous Vehicles Arrive

Don’t Hold Your Breath: Furthering the Fight Against Drunken Driving Until Autonomous Vehicles Arrive

By Russell Spivak, JD ’17[*]

Interlocking Ignition Devices (IIDs) restrict a driver from turning on a car unless he or she passes a Breathalyzer examination. There is significant reason to think that promoting—if not mandating—the installation of such technologies in all cars, regardless of their drivers’ drinking habits or driving records, would lead to a substantial decline in auto accidents, along with a commensurate recapture of economic value. This Article explicates why this life-saving technology has not been more widely adopted already. It then offers a few potential levers by which federal or state governments can induce or compel the adoption of these life-saving devices within the confines of administrative law and the strictures of federalism. Finally, the Article briefly details a few pragmatic issues associated with inducing the adoption of IIDs, including 4th Amendment concerns and the auto insurance industry’s response.

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Participation in Name Only: How Section 2 of the Voting Rights Act Can Present a Meaningful Challenge to Big Money in Politics

Participation in Name Only: How Section 2 of the Voting Rights Act Can Present a Meaningful Challenge to Big Money in Politics

By Jonathan Topaz, JD ’18[*]

No, Jim Crow is not dead. It’s not quite dead. It now focuses its energy in different areas. Instead of literacy tests or poll taxes, the new way to deny adequate representation is to allow us to vote for any candidate we want so long as they’re rich. We have a long way to go.[1] – Clayton Harris, former President, Howard Law Student Bar Association

I. Introduction

If the fierce battle over money in U.S. politics between libertarians and campaign finance reform advocates is a tennis match, the Supreme Court has forced the latter to play with a wooden racket or broken strings. In the landmark case Buckley v. Valeo, the Court found that campaign expenditures to influence elections amount to First Amendment-protected political speech[2]—meaning the government must prove it has a compelling interest to justify any campaign finance restrictions.[3] Buckley’s decision has been a tremendous boon for the libertarian side, which has pummeled reformers with constitutional free speech arguments to loosen campaign finance regulations. Buckley also rejected a “political equality” justification for campaign finance restrictions, stating instead that the government has a sufficiently important interest to prevent only corruption or the appearance of corruption.[4] The Court has interpreted “corruption” as meaning “quid pro quo corruption”[5]—an incredibly narrow interpretation that seemingly condones anything beyond literal bribery. The Supreme Court has thus effectively neutered reformers looking to impose campaign finance regulations that go beyond the almost non-existent problem of quid pro quo corruption.[6]

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The Coming Collapse of the Paris Climate Agreement

The Coming Collapse of the Paris Climate Agreement

By Bryan H. Druzin [*]

I. Introduction

Now that the Trump administration has abandoned the Paris Climate Agreement, the question is whether the agreement will collapse. A strong case can be made that it will indeed unravel—perhaps not immediately, but eventually. Although the world’s leaders have been quick to reaffirm their continued resolve to implement the agreement,[1] the problem is that multilateral environmental agreements are uniquely fragile because their value depends directly upon the number of states that are party to it and the collective perceptions that surround this. Environmental agreements have a certain “all or nothing” quality to them. For example, an agreement to reduce carbon emissions between only two states provides little value. The value of the same agreement, however, increases dramatically with twenty, ninety, or 195 governments in hand. They are thus extremely reliant on unanimity of agreement and uniquely sensitive to the loss of it.

This is why it was so vital that the Paris Agreement lock down the participation of all the states in the international system.[2] For all of its flaws, the Paris Agreement had the strength of unanimity. Countries that remain in an environmental agreement while other states pull out understandably grow reluctant to assume the burden of their commitments.[3] Because of this, withdrawal—particularly of a major player such as the U.S.—can create a knock-on effect, causing other states to follow. A slow trickle can become a flood. This dynamic renders multilateral environmental agreements extremely “tippy” and highly susceptible to collapse.[4] For international environmental cooperation to succeed, everyone needs to be onboard and everyone needs to stay onboard.

Many hold hope that the U.S. will ultimately not withdraw from the Paris Agreement, noting that under Article 28(1) the U.S. cannot exit the agreement until three years from the date on which the agreement entered into force for the party, which in the case of the U.S. was November 4, 2016. Article 28(2) mandates that withdrawal will then take effect one year after notification is received, putting the earliest date of actual withdrawal after the next presidential election, which is to be held on November 3, 2020.[5] However, this ignores that, while not yet manifest, the process of collapse has in fact already begun. The issue now is whether further erosion can be prevented. Because the agreement depends so much on international unanimity, the Paris Agreement was dealt a potentially fatal blow the moment the U.S. signaled its intention to withdraw.

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