Captain Crunch is an enemy of the state

If you buy cereal for your children, or yourself, you should be aware that the Food and Drug Administration thinks you are falling down on the job.

Last week, the FDA issued “guidance” to the food manufacturers of America pronouncing the agency deeply troubled about efforts by various segments of the business to use “front of package” branding to delineate their products as a useful — say a “smart choice” — for the consumer.

“FDA’s research has found that with FOP labeling, people are less likely to check the Nutrition Facts label on the information panel of foods [usually the back or side of the package],” the federal agency wrote in its public announcement of its concern. “It is thus essential that both the criteria and symbols used in front-of-package and shelf-labeling systems be nutritionally sound, well-designed to help consumers make informed and healthy food choices, and not be false or misleading.”

You need to read the whole letter from Barbara O. Schneeman, Ph.D., who’s the director of the Office of Nutrition, Labeling and Dietary Supplements at the FDA’s Center for Food Safety and Applied Nutrition.

Schneeman is almost certainly an accomplished professional and the FDA staff working with her is no doubt full of competent, hard-working professionals, but when exactly did the federal government get into the business of assessing the branding of ordinary food products?

The sort of advertising “puff talk” we are routinely exposed to in our daily lives is simply not the sort of speech we want the government patrolling for “truth content.”

The current debate about industry-sponsored standards for FOP has its genesis in a long-running debate about what Johnny ought to eat for breakfast. Some cereal manufacturers have come up with the “smart choice” program that entitles products maintaining certain nutrition standards to use the logo, even though some of those products have sugar mixed in to make them appealing to kids.

The FDA’s research shows, according to her letter, that FOP branding makes people less likely to check the nutrition facts. Perhaps. But I’d like to see the research.

Note first that our ingrained hostility to “false and misleading” information is harnessed to the idea that packaging must promote nutritionally sound food choices and must help us make healthy food choices. You can be against “false claims” and also against false arguments, such as the one advanced by the FDA here.

Americans don’t want the federal government morphing into the food police. They particularly don’t want the FDA issuing what amounts to an invitation to attorneys to start suing food manufacturers for misleading, hurtful FOP claims.

The industry — backed by small-government conservatives and just common sense, leave-us-alone citizens — should push back against the FDA’s imagined, urgent demand for a new regulatory drive into the packaging of every food product in America because, make no mistake, that’s where last week’s “guidance” is pointing.

Examiner columnist Hugh Hewitt is a law professor at Chapman University Law School and a nationally syndicated radio talk show host who blogs daily at www.hughhewitt.com.

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