Introduction

Consumers navigate a complicated and highly regulated world of food marketing. The critical issue surrounding the marketing of food concerns information and how it is conveyed to consumers. Laws – federal and state regulation, court decisions, and private standards – address this issue in various ways. Although divergent in approach, these laws seem to share the epistemological aim of increasing truth possession and reducing error. One approach is to ban false, deceptive, or misleading labeling and advertising that lead people to draw false conclusions, even if the statements themselves are not false. Another approach is to provide consumers with information, sufficient to make informed decisions about what foods to buy. This objective increases the information provided to consumers rather than avert false beliefs.

This chapter divides the regulation of food marketing into two sections – labeling and advertising. This division mirrors the treatment of food marketing in the federal regulatory system: the Food and Drug Administration (FDA) and United States Department of Agriculture (USDA) regulate food labeling for food products that fall within their respective jurisdictional mandates, while the Federal Trade Commission (FTC) is responsible for policing food advertising. This simple division of jurisdiction has been blurred at different times in the long-standing relationship between the agencies. For the most part, however, the agencies cooperate and share information freely in the course of regulating food marketing. This chapter addresses the tension between the First Amendment and restrictions on speech via food marketing regulation. National labeling regulation is remarkably detailed and expressly preempts states from enacting different requirements for labels. However, this chapter will also address notable food labeling issues where states have been innovators and gap fillers in developing food labeling law. Also covered in this chapter are the important roles of private regulation and international regulation. Finally, gaps in the regulations and the enforcement by the FDA and FTC have provided the impetus for an explosion in food-marketing litigation. This chapter examines the claims, defenses, and trajectory of food-marketing litigation.

Regulation of Food Labeling

[1] Purpose of Food Labels

Consumers rely on food labels to determine what they are consuming. A number of legal requirements govern what information must, may, and may not appear on the package label.