Legal Questions Raised Regarding “Voluntary” Food Advertising Principles

Legal Questions Raised Regarding “Voluntary” Food Advertising Principles

December 29, 2011


The draft of the Nutrition Principles to Guide Industry Self-Regulatory Efforts on children-focused food marketing has been widely criticized by Members of Congress, affected businesses and other sectors of society. By way of a response, the Interagency Working Group, or IWG, which released the draft in April pledged to implement changes to its original draft.

However, the IWG did not show any inclination to implement one vital change, which, if unmade, could pave the way for a legal challenge.  Since the Nutrition Principles amount to “dietary guidance,” which differs from the U.S. Dietary Guidelines for Americans, or DGA, a strong argument can be raised that the Health and Human Services and Agriculture Secretaries must review the draft of the IWG.

The National Nutrition Monitoring and Related Research Act of 1990 requires “any federal agency that recommends any dietary guidance for the general population or identified population subgroups shall present the text of such guidance to the USDA and HHS Secretaries for a sixty-day review period.”

Observers say that the Nutrition Principles of the IWG constitute “dietary guidance.” They offer specific nutrition requirements for foods that companies market to children and, if those food companies cannot alter the ingredients of their products in order for them to meet the requirements, they are not allowed to advertise them.

IWG’s Nutrition Principles differs from the Nutrition Guidelines for Americans. The draft of the IWG states that “the principles should not be interpreted as a change in federal dietary guidance or nutrition policy,” or “signal any departure from the 2010 DGA.”