Simply put, the anticipated legislation would let food marketers make new health claims in ads without requiring the same amount of scientific support mandated by the Food & Drug Administration for labels. But it would also set a higher level of support than now required by the Federal Trade Commission, which issued its new policy statement on food ads May 13.
The legislation isn't likely to be welcomed by food advertisers that would like to see the new FTC policy in action, or by consumer groups, which pushed for complete uniformity between what a food marketer could say on a label and in an ad, as well as in the level of support needed for both label and ad claims.
Rep. Joe Moakley (D., Mass.), who in recent years was the leading congressional advocate of uniformity, is revising earlier versions of food advertising legislation. The forthcoming third variation of his bill will be dramatically different in at least two respects:
It will retreat from earlier insistence on uniformity.
It will likely carry the endorsement of a key lawmaker, Rep. Al Swift (D., Wash.), chairman of the House Energy & Commerce Committee's Subcommittee on Transportation & Hazardous Materials, which oversees the FTC.
Rep. Swift could play a critical role in the legislation because he sets the panel's hearing schedule. That would be vital to the success of any food advertising bill, especially this year when major issues such as healthcare and telecommunications dominate key committee schedules, and Congress will try to go home as early as possible to campaign for the elections.
Rep. Moakley "is trying to work out legislation that would allow a middle ground between the FDA and the FTC and what business needs to be able to say and do in ads that it cannot on a label, and that consumer groups will feel comfortable with," said Sophie Hayford, a Moakley aide. "We think that if a claim could be substantiated by other entities of the federal government-the National Institutes of Health, for example-then it could be considered a solid claim, while still retaining some sort of veto power for the FDA."
Ms. Hayford said Reps. Moakley and Swift are aiming for hearings this year.
The FDA's new rules implementing the 1990 Nutritional Labeling & Education Act took effect May 8, though pending legislation likely will delay the compliance date to Aug. 8.
Slightly more than two weeks ago, the FTC ended more than a year of study by issuing its own policy statement that told food marketers how closely their ad claims would have to conform with FDA rules. In many instances, the FTC's policy directly paralleled the FDA; definitions of nutrient descriptors were the same, so a label claim of "fat free" will be the same as an ad claim for "fat free."
But it was in the area of health claims that the FTC's policy statement veered the farthest from the FDA's rules. The FTC encouraged advertisers to make only those health claims that are on the FDA's list of seven approved assertions but didn't say they were limited to those claims.
"As it is now, [food] companies may be leery of breaking new ground even if their claims are true," said a congressional aide. "We've already seen a chilling effect on health claims" in the wake of the FDA's labeling rules.
"If the FDA says that the jury is still out on a labeling claim, it would be hard for the FTC to say anything to the contrary when it comes to an ad claim," he said. "But there's a lot out there that the FDA has not even looked at ... a lot out there that might never make it onto a label ... and the tradition of advertising is to allow people to make claims as long as they are substantiated."