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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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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Churches are not Places of Public Accommodation

Churches are not Places of Public Accommodation [*]

By Caleb C. Wolanek, JD ’17 [**]

On September 1, the Massachusetts Commission Against Discrimination stated that churches would be subject to the Commonwealth’s “public accommodation” statute.[1] Although Attorney General Maura Healey some time ago slipped “houses of worship” onto her website’s list of places of public accommodations[2] (even though churches are nowhere listed in the public accommodations statute),[3] the Commission’s September 1 “Gender Identity Guidance” boldly stated that “[e]ven a church could be seen as a place of public accommodation if it holds a secular event, such as a spaghetti supper, that is open to the general public.”[4]

But the Commission does not get to write the law—the legislature does. And the text and history of Massachusetts’s nondiscrimination statute shows that churches are not places of public accommodation and are thus not subject to the nondiscrimination statute.[5]

1. The Massachusetts law historically regulated businesses.

Consider the statute’s history. As the Supreme Court noted in 1995, early common law required that “innkeepers, smiths, and others who made a profession of public employment” practice nondiscrimination.[6] Similarly, Professor Joseph Singer writes that “[a]ntebellum law imposed a duty to serve the public on common inns and on common carriers. . . . [I]t “also characterized other businesses as ‘common callings,’ and based the duty to serve the public on the fact that a business had held itself out as open to the public.”[7]

In 1865, Massachusetts was the first state to codify this duty when it prohibited racial discrimination in “any licensed inn, in any place of public amusement, public conveyance or public meeting in th[e] Commonwealth.”[8] The Commonwealth soon expanded the statute to include theatres,[9] skating rinks,[10] and finally any “other public place kept for hire, gain or reward.”[11]

This language was omitted in 1950 when the nondiscrimination statute started referring exclusively to “place of public accommodation.”[12] That designation had been created in 1933 to refer to a list of businesses: “any inn, . . . restaurant, eating-house, public conveyance on land or water or in the air, bathhouse, barber shop, theatre and music hall.”[13]

In 1953, the legislature adopted the current definition: “any place, whether licensed or unlicensed, which is open to and accepts or solicits the patronage of the general public.”[14] This two-pronged definition of “place of public accommodation” persists today.[15]

This history reveals that the public accommodation statute is aimed at businesses, not mere gatherings. This explains the definition’s “patronage” prong. Just as your local movie theatre might call its guests “patrons,” and just as your corner grocer might have a sign at the door saying “Thank you for your patronage,” so too does the statute single out those with customers. Although one might claim patronage means mere “support,” the statute’s history favors a business-oriented reading.[16] Indeed, although the statute regulates hospitals, clinics, and pharmacies, it only reaches those that “operat[e] for profit.”[17]

2. Church meetings are not businesses, so they are not places of public accommodations.

Simply put, churches are not businesses. Church members gather to encourage and admonish one another as they live out their faith; they do not meet to sell goods or services. Although churches often accept donations, these are used to facilitate the religious mission (such as feeding the hungry or paying the church electric bill). These are not business transactions. Indeed, the IRS recognizes that there is no quid pro quo involved with these donations—as demonstrated by the fact that they are tax-deductible.[18]

One might cite several statutory examples of places of public accommodation in an attempt to show that business patronage is not required. That argument does not succeed. The statute says that an “auditorium, theatre, music hall, meeting place or hall, including the common halls of buildings,” is a place of public accommodation.[19] But this seems to refer to something like a convention center. In those places, including in the “common halls” (which I read to mean “lobby”), persons who rent space and then sell admission (or sell products therein) must practice nondiscrimination. But a church, acting as a church, typically does not sell admission or products. Even if a church hosts a spaghetti dinner that is open to the public, it is not a restaurant.

Two other examples are a “boardwalk or other public highway” and a “public library, museum or planetarium.”[20] To be fair, neither of these usually charges admission. But these are also usually government institutions. Government libraries and museums need not be labeled places of public accommodation because they are actually public—that is, society as a whole owns them. Even when private citizens own a public library or museum (and do not charge dues or admission), they are organized for the express purpose of allowing the public to use those facilities. And even then, a transactional element remains in libraries: one may take the book only with permission, and they must either bring it back or pay a fine. A church is not that kind of an institution. Churches are gatherings of the faithful, not businesses.

3. Community use does not transform churches into places of public accommodation.

But perhaps the Commission is not attempting to restrict what churches do when they gather as a church. After all, the example the Commission gave was that of a “secular” spaghetti dinner. It might have also looked at when a town uses a church building as a polling place on Election Day, or a local piano teacher uses the main hall for a recital. Perhaps the Commission attempts to apply the nondiscrimination statute to those activities.[21]

But this approach does not succeed. After all, the mere fact that an event does not involve preaching or prayer does not make the gathering non-religious.[22] A more realistic position is that churches are pervasively religious.[23] Therefore, imposing a nondiscrimination requirement actually does inhibit religious activities.

Indeed, the very motivation for opening the church building to a “secular” event might be religious in nature.[24] This is because a church does more than teach from sacred texts. It also tries to embody those teachings—such as the common admonition to love one’s neighbors. This results in community service. Holding the church building out as a safe and comfortable space is a way to love the neighborhood.[25] But because the church is motivated by its faith, it will almost certainly be selective when allocating the use of its property. (This selectivity would also undermine the “openness” prong of the statutory definition.) A traditional mosque or Southern Baptist church would probably not host a beer festival, and it is hard to imagine many churches hosting an atheist convention.

4. Interpret the law to avoid First Amendment violations.

Even assuming the statute’s applicability is ambiguous, we should read the text in a way that avoids a First Amendment violation.[26] Although nondiscrimination is an important goal, so too is enforcing the First Amendment.

Enforcing nondiscrimination raises serious free exercise concerns. After all, if telling a church it must not fire a minister violates the Free Exercise Clause (because it infringes on the church’s autonomy to preach its message),[27] would it not also violate the Constitution to prohibit what those at a church gathering may say? There are also freedom of speech[28] and freedom of association[29] issues. The Commission should avoid, not invite, these conflicts.[30]

5. Conclusion

Public accommodation laws are well-intentioned; their goal is to ensure that all citizens have equal standing in society and public life. But these laws should not infringe on freedom of conscience. Therefore, churches should not be considered places of public accommodation. The Commission should let them be, not threaten them with a statute enforced by fines and jail time.

Churches are physical embodiments of religious convictions. Telling a church that it cannot act on its beliefs—that it must accept the presence of perceived wrong in its midst—seriously hinders the church’s mission. Worse still, it risks forcing compliance for the sake of compliance—something I thought we abandoned long ago.[31] The First Amendment protects church autonomy from state intrusion by means of a “wall of separation.”[32] Massachusetts should not breach that wall.[33]

[*] This article was updated on December 14, 2016, to reflect movement in the lawsuit discussed.

[**] J.D. Candidate, Harvard Law School; B.A. in Political Science, Auburn University. Josh Craddock helped me identify several arguments to make. Any remaining errors are, of course, my own. In the interest of disclosure, I note that I have supported several of the groups that filed the Horizon Christian Fellowship v. Williamson lawsuit mentioned below.

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G.I. Jane and the Selective Service: Equal Protection Challenges to Male-Only Selective Service in the Modern Military

G.I. Jane and the Selective Service: Equal Protection Challenges to Male-Only Selective Service in the Modern Military[*]

By Russell Spivak, JD ‘17 & Lieutenant Adam Aliano, USN, JD ‘17

[*] This article in no way reflects the views of the Department of Defense.

In 1981, the Supreme Court approved a requirement that men alone register with the Selective Service in Rostker v. Goldberg. The Court relied on the military’s disparate treatment of men and women with respect to their ability to serve combat to hold that male-only registration passed Equal Protection Clause analysis. In 2015, however, Defense Secretary Ash Carter opened all military jobs to qualified women. By mid-2016, both the Senate and House had passed their versions of the National Defense Authorization Act of 2017. The Senate’s version contains a provision requiring women to register with the Selective Service, while the House’s version’s analogous provision was stripped after being approved. The provision’s ultimate fate is up to a conference committee. However, in light of the changes in women’s ability to serve, the committee’s decision is academic: male-only registration is unconstitutional under the Equal Protection Clause.

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