Food Labeling: FDA Needs to Better Leverage Resources, Improve Oversight, and Effectively Use Available Data to Help Consumers Select Healthy Foods
Released: 2008-10-09T00:00:00

Letter

Background

The Federal Food, Drug, and Cosmetic Act, as amended, prohibits the “misbranding” of food, which includes, among other things, labeling that is false or misleading. In 1990, Congress amended the act to mandate that certain nutrition information be provided on packaged foods in a specified, standardized format—only recently have other countries, such as Canada, initiated mandatory nutrition labeling. The act, and FDA regulations implementing it, require food labels to include nutrient, ingredient, and other important content information that consumers can use to make healthy dietary choices, and to avoid allergens (such as peanuts) and other ingredients (such as sulfites) that can cause life-threatening reactions in people who are sensitive to them. For example, the act and FDA’s regulations, with some exceptions, require that food labels include the following: a Nutrition Facts panel that identifies the serving size; the number of servings per container; the number of calories per serving; and the amount of certain nutrients, such as fiber, vitamins, fat, and sodium; an ingredients list that identifies the product’s ingredients by their common or usual names, in order of predominance by weight; the required information in English; and a declaration of the source (e.g., tree nuts) of major allergens.

Figure 1 depicts an example of a Nutrition Facts panel from FDA’s regulations illustrating nutrition information and visual display.

The act and FDA regulations also require that health claims—that is, claims characterizing the relationship of certain nutrients to a disease or a health- related condition—on food labels be authorized by FDA. For example, a main dish that contains 140 milligrams (mg) or less of sodium per 100 grams may be labeled with the claim that “diets low in sodium may reduce the risk of high blood pressure, a disease associated with many factors,” provided there are no nutrients in the food at levels that would disqualify it from making this claim. In regulations, FDA has authorized the use of claims for 12 relationships between a nutrient and a disease or health- related condition.

For purposes of compliance, with certain exceptions, a food is subject to enforcement action under FDA regulations if the number of calories or the amount of certain nutrients, such as fat and sugar, is more than 20 percent over the amount declared in the Nutrition Facts panel. The Institute of Medicine established the reference nutrient values that FDA used (along with the Dietary Guidelines for Americans) to establish the daily values for nutrients on the Nutrition Facts panel. In addition, for compliance and enforcement purposes, the amount of certain nutrients naturally occurring in the food must be at least equal to 80 percent of the value declared on the label; the amount of added nutrients in fortified or fabricated foods must be at least equal to the amount shown on the panel. According to FDA, these variations are allowed because, for naturally occurring nutrients, values cannot be precisely controlled and depend on weather and soil conditions, among other variables; in addition, values will vary because different laboratories use different methods and testing devices.

FDA’s procedures for handling a product complaint require staff to obtain sufficient information from the complainant to evaluate the complaint and determine if it requires follow-up. Also, the complaint is to be documented in the Field Accomplishments and Compliance Tracking System (FACTS). For a food-labeling-related complaint, the information documented in FACTS should include, among other things, any injury, illness, or adverse event that was reported as having occurred as a result of incorrect labeling, and any follow-up actions. Complaints of significant illness or injury must receive immediate and thorough follow-up, while follow-up on those complaints that do not involve injury or illness may be deferred until the next scheduled inspection of the responsible firm, which may be in a few weeks, months, or several years.

Similarly, FTC authorities prohibit unfair or deceptive acts or practices in or affecting commerce, including false or misleading advertising of food products. In some cases, FDA and FTC have certain overlapping jurisdiction for regulating food advertising, labeling, and promotion. In a 1971 memorandum of understanding, the agencies agreed that FTC would exercise primary responsibility for ensuring that food advertising is truthful and not misleading, and that FDA would have primary responsibility for ensuring that food labeling is truthful and not misleading.

FDA Has Limited Assurance That Companies Are Complying with Food Labeling Requirements

FDA’s use of oversight and enforcement tools has not kept pace with the growing number of food firms. As a result, FDA has limited assurance that companies in the food industry are in compliance with food labeling requirements, such as those prohibiting false or misleading labeling. FDA’s testing of nutrition information has been limited and has found varying degrees of compliance. Actions in response to labeling violations, such as issuing warning letters, have generally decreased or remained steady. In addition, FDA has not analyzed data on labeling violations and follow-up activities to inform its managers or the public. Furthermore, CFSAN has continued to maintain a duplicate food recall system that FDA had agreed to eliminate in response to a recommendation we made in a 2004 report.

Food Labeling Oversight Has Not Kept Pace with the Growing Number of Firms

While the number of domestic food firms has increased, FDA has not increased the number of its inspections in response to this increase (see fig. 2). Also, FDA does not have reliable data on the total number of labels reviewed because investigators do not have to enter this information into the FACTS database, which documents other inspection details. In the absence of reliable data on the number of labels reviewed, and assuming that investigators were reviewing three labels each time, as FDA officials told us was the common practice, the number of labels reviewed would have declined with the decline in the number of inspections.

FDA has conducted few inspections in foreign food firms and that number has declined significantly—from 211 in 26 countries in 2001 to 95 in 11 countries in 2007—even as the United States has received hundreds of thousands of different imported food product entry lines from tens of thousands of foreign food firms in more than 150 countries. (See app. II for information on the number of domestic and foreign food firms inspected under FDA’s jurisdiction during fiscal years 2001 through 2007.) Table 1 shows the number of countries and foreign food firms inspected over this period.

Appendix III lists the countries and the number of inspections FDA conducted in each country, from fiscal years 2001 through 2007.

In addition, FDA reported inspecting about 1 percent of the different food product entry lines that came into the United States annually during fiscal years 2002 through 2007. However, unlike investigators who perform inspections at manufacturing firms, the investigators who review labels on imported foods are not able to see the manufacturing process, the ingredients stored on shelves, the product formulation, and other documents that provide key information that helps to identify labeling violations.

Testing to Determine the Accuracy of Nutrient Information Is Limited and Outdated, and Shows Varying Degrees of Compliance

While FDA has tested some targeted nonrandom samples of food products to determine the accuracy of nutrition information on their labels, it has tested relatively few food products from some major exporting countries. In addition, FDA has done no random sampling since the 1990s, when some compliance rates varied considerably from the amount identified on the Nutrition Facts panel. From fiscal years 2000 through 2006, FDA collected targeted samples of 868 domestic products and 783 imported products for tests of compliance with nutrition labeling regulations. FDA was unable to provide information on samples taken and test results for fiscal year 2007 because, according to an agency official, the person who analyzed those data had retired from FDA.

According to FDA officials, investigators often selected samples because they noticed obvious labeling violations, such as a candy bar with a Nutrition Facts panel that did not identify any fat or sugar. As table 2 shows, about 21 percent and 28 percent, respectively, of the domestic and imported foods tested were in violation.

The number of samples of imported food FDA has tested for accuracy of nutrition labeling does not relate to the volume of imports or the rate of violations in products from a given country, as table 3 shows. One type of food with a high percentage of violations was infant formula—4 of the 10 formula products sampled were in violation—because they lacked the vitamins, minerals, or other nutrients required by law.

While FDA has conducted targeted, nonrandom sampling of labels on imported and domestic food products suspected of having inaccurate information (beyond the allowable ranges) for nutrients listed on their labels, FDA has not conducted random sampling on nutrition labeling since the 1990s. In 1994 and again in 1996, FDA tested 300 randomly selected products to determine the extent to which nutrient information on the Nutrition Facts panel was within the allowable range. According to FDA’s analysis of these products, 87 percent (in 1994) and 91 percent (in 1996) of the nutrients were within the allowable range. However, compliance rates varied significantly for a few nutrients. For example, in 1994 and 1996, respectively, 48 percent and 47 percent of the samples were not within the allowable range for vitamin A; 48 percent and 12 percent of the samples were not within the allowable range for vitamin C; and 32 percent and 31 percent of the samples were not within the allowable range for iron. These variances are important because consuming too much or too little of certain vitamins and iron may have adverse health consequences. FDA officials cited resource constraints and other priorities as reasons for not updating these studies and told us that FDA has no plans for future studies.

Actions in Response to Labeling Violations Have Generally Decreased or Remained Steady

FDA has available several tools to ensure that food labeling complies with requirements: (1) issuing warning and untitled letters and holding regulatory meetings and (2) taking enforcement actions—seizures, injunctions, import refusals, and import alerts. However, we found that FDA’s efforts have generally declined or held steady.

FDA Warning Letters for Food Labeling Violations Have Remained Steady

From fiscal years 2002 through 2007, FDA issued 463 warning letters to firms with serious violations that included food labeling violations—often with other food-safety-related violations—notifying them that enforcement actions might be forthcoming if corrections were not made. The number of warning letters issued annually that included food-labeling-related violations held relatively steady during the period. On the other hand, the number of letters issued for all FDA-regulated products (e.g., food, drugs, and medical devices) decreased by nearly half—from 806 letters in fiscal year 2002 to 434 in fiscal year 2007. However, as we conducted our study, FDA continued to find additional warning letters that had been issued for fiscal years 2002 through 2007. In addition, according to FDA, its Fiscal Year 2007 Enforcement Story reported 471 warning letters for 2007. Thus, the number of food-labeling-related warning letters, as well as total FDA warning letters, may be higher than we report. Figure 3 shows the number of warning letters issued annually for fiscal years 2002 through 2007.

The labeling-related warning letters addressed violations for different product types—including candy, baked goods, seafood, and juice drinks— that were identified through inspections or testing product samples. About 52 percent (241 of 463) of the letters were for dietary supplements. Of the 463 food-labeling-related warning letters, 326 cited specific violations of the misbranding provision of the Federal Food, Drug, and Cosmetic Act; the other 137 letters cited other statutory provisions and regulations. As shown in table 4, the 326 letters that cited the misbranding provision included references to 677 violations in 15 different categories.

FDA officials explained that they try to focus their oversight efforts on the labeling violations of public health significance and on the types of products with widespread or persistent violations. For example, on October 17, 2005, FDA issued 29 warning letters to manufacturers of cherry juice and other fruit products for unapproved claims related to diseases, and 25 letters on October 12, 2006, to makers of dietary supplement products that had drug claims or unauthorized health claims.

FDA officials told us that warning letters are an important and very public tool for ensuring compliance with FDA regulations and alerting other companies of practices that are not acceptable. Furthermore, FDA, in accordance with Freedom of Information Act requirements, makes these letters available on its public Web site. However, we found several problems with FDA’s public dissemination of warning letters that call into question the accuracy of its numbers. For example, we tested the reliability of this database and found that it was missing over 220 warning letters. When we brought the missing letters to their attention, FDA officials told us they posted them. Although FDA officials assured us that the database was complete and accurate, in February 2008 and later, we found duplicate letters in the database as well as additional letters that had been issued during fiscal years 2006 and 2007. Therefore, the number of warning letters posted on FDA’s Web site for fiscal years 2002 through 2007 may be different from the number shown in figure 3. In April 2008, FDA officials told us they were continuing to work on the database and to discuss potential process improvements to help ensure that all letters are posted.

In fiscal year 2001, FDA had issued nearly twice as many warning letters for all violations than in 2002. FDA officials attributed the decrease in warning letters, in part, to new policies that transferred the approval of warning letters from FDA centers and districts to the Office of Chief Counsel. FDA officials told us that the target turnaround time for issuing a warning letter—the elapsed time between the day officials identify the violation, either through an inspection, laboratory test, or illness outbreak investigation, and the day FDA issues a warning letter—is about 4 months. This is a nearly fourfold increase over the 30-workday target time we reported in February 2005. A longer lag time to issue a warning letter increases the number of days for which consumers may consume the misbranded food before FDA posts these serious problems on its Web site.

In addition, FDA estimated that it has sent one third as many untitled letters—correspondence citing violations that FDA deems as not warranting a warning letter—as warning letters. We did not assess untitled letters because FDA did not centrally track the letters in a database, nor did it maintain copies centrally until fiscal year 2008. Regarding regulatory meetings, FDA could not tell us how many were held because these meetings are handled exclusively by the district offices and are not centrally tracked. FDA does not receive any information on the extent to which districts are using these meetings and whether the different field offices are using the same criteria for these meetings.

More Serious Enforcement Actions on Labeling Are Generally Limited

FDA has taken few enforcement actions—seizures, injunctions, and import refusals—for food labeling violations and issued a number of labeling- related import alerts. FDA was able to provide us with data on seizures and injunctions for 10 years and on import refusals and import alerts for 6 years.

Seizures: In fiscal years 1998 through 2007, FDA had initiated actions that resulted in court seizures of 21 products in domestic commerce for food- labeling-related violations. Of the 21 seizures, most were of imported products. Olive oil, dietary supplements, and mushrooms were the most frequently seized products.

Injunctions: According to FDA documents, the courts enjoined two companies in response to possible labeling violations for fiscal years 1998 through 2007. On February 3, 2006, FDA obtained a consent decree of permanent injunction against Natural Ovens Bakery, Inc., for allegedly introducing misbranded foods, including dietary supplements, and misbranded and unapproved drugs into interstate commerce and for causing foods to become misbranded. According to FDA documents, the injunction was obtained after a 20-year history of noncompliance with FDA regulations, and 3 years after an April 8, 2003, warning letter that FDA's Minneapolis District Office had issued in response to inspections conducted in December 2002, February 2002, and September 2001. The other was a consent decree of permanent injunction, entered in September 2003 against a dietary supplement manufacturer—Hi-Tech Pharmaceuticals, Inc.—for allegedly labeling dietary supplements with drug claims, which violated food labeling requirements and caused FDA to have to regulate the supplements as drugs and, specifically, as unapproved new drugs. FDA considered this injunction to be food-labeling-related.

Import refusals: FDA refused entry to 15,226 imported food product entry lines that had labeling violations from fiscal years 2002 through 2007. In fiscal year 2002, while FDA examined the fewest labels, it refused entry to the highest percentage of foods; conversely, in fiscal year 2005, FDA examined the greatest number of labels, and refused entry to the lowest percentage of foods over the 6-year period. In addition, over this period, 14,851 products that had labeling violations were released “with comments”—meaning that FDA allowed the shipment with a labeling violation to enter the United States with notice to the importer that subsequent shipments could be refused entry if the violation was not corrected. Releases with comment are intended to cover deficiencies FDA regards as minor, nonhealth-significant. If FDA finds additional imports of one of these products with the same violation 60 or more days after the earlier shipment is released with comments, FDA may consider detention, according to FDA officials. (See table 5.)

For import refusals, the most frequent labeling violations cited were the lack of required nutrition information (25 percent); the failure to list the common or usual name of each ingredient (18 percent); the failure to accurately state the product’s weight, measure, or numerical count (13 percent); and the failure to provide the label in English (12 percent). (See table 6.)

Of the nine countries with the greatest value of agricultural, fish, and seafood imports to the United States in fiscal year 2006, Canada was the largest—with a total value of $15.6 billion; Mexico was second with $9.8 billion, followed by China with $4.2 billion. As shown in table 7, during fiscal years 2002 through 2007, Canada also had the most food labels reviewed (45,377) and lowest rate of import refusals (2.6 percent) where a labeling violation was cited, while Australia had the fewest label reviews (697) and the highest rate of import refusals (14.3 percent) where a labeling violation was cited.

Import alerts: As of January 28, 2008, FDA gave us information on active import alerts for 64 food products that officials characterized as labeling violations. For example, FDA issued import alerts for several different types of biscuits imported from India that did not use the common or usual name for ingredients. Once a product is on the import alert list, FDA does not remove it until the firm appears to have corrected the violation, according to FDA officials. Twenty of the 64 products on import alert were added during fiscal year 2007, and 1 of the remaining 44 had been in effect since April 2000. In technical comments on a draft of this report, FDA indicated that 64 alerts seemed too low and that it may not have provided us with all import alerts for labeling violations. However, FDA did not provide additional information or documentation on those alerts.

FDA Has Collected but Not Analyzed Data on Labeling Violations and Follow-up Actions

FDA does not centrally track or analyze data on potentially serious labeling violations or firms’ actions to correct those violations. We repeatedly requested any routine reports on labeling compliance that FDA managers used to help them carry out their program oversight responsibilities. However, according to officials, they do not generate such routine reports due, in part, to resource limitations and to limitations in FDA information systems. For example, over the past decade, FDA has never analyzed the results of the laboratory tests on the accuracy of labeling information (e.g., the Nutrition Facts panel and declared allergens) on domestic and imported foods. An official said they had always wanted to develop computer programs that would identify trends, but did not have the staff to do so. Also, FDA does not routinely analyze and report on trends in labeling violations. As a result, FDA managers do not have important information to inform their decision making on setting priorities for overseeing compliance with labeling requirements and allocating resources for labeling program activities.

Furthermore, FDA does not provide consumers and others with important information on its public Web site to help inform their food purchasing decisions. As we have previously noted, FDA’s Web site’s posting of warning letters has not been kept current and complete. In addition, although FDA maintains import refusals and warning letters, its Web site does not provide the public with summary information on, and trends in, serious labeling violations by, for example, product type, company, and country.

In addition, from fiscal years 2001 through 2007, FDA documented approximately 2,600 complaints from consumers on food labeling issues in FACTS—its compliance tracking system. These data included complaints that ingredients—such as allergens—in the food were not listed on the label and may harm consumers’ health. However, the data concerning complaints were not entered into FACTS in a way that would facilitate analysis. Specifically, standard terminology was not used and information on complaint resolutions was captured in different data fields. As a result, FDA program managers cannot readily use these FACTS data to track the timely and appropriate resolution of consumer labeling complaints.

CFSAN Continues to Maintain Duplicate Recall Database

According to our analysis of FDA’s Recall Enterprise System (RES) database, 409 of the 1,295 food product recalls that firms carried out during fiscal years 2003 through 2007 listed food labeling violations, such as failing to list added chemical preservatives on labels, as a factor. While food labeling was listed as a reason in each of the 409 recalls, it was not necessarily the only reason nor was it necessarily the most serious violation. In addition, almost 57 percent of the labeling-related recalls were for violations that FDA classifies as high risk—that is, posing a reasonable probability of causing serious adverse health consequences or death—such as labels that fail to identify certain allergens in the food, such as tree nuts, that are potentially deadly to individuals who are sensitive to them.

However, CFSAN maintains an unofficial database of food recalls and reported that it was able to identify more labeling-related recalls than we did in using the official RES. In the course of our work, we learned that CFSAN has continued to maintain this unofficial database for food recalls apart from the official RES. In October 2004, we first reported CFSAN’s use of this duplicative recall database and the discrepancies between the unofficial data and the official data. At the time, CFSAN program staff told us they used the unofficial database to generate reports for Congress because it contained the most accurate data. We pointed out that keeping the second database raised significant questions about the validity and reliability of the official system. We also pointed out FDA’s substantial investment in the RES and the duplication of resources spent maintaining two separate data systems. Although FDA agreed with our recommendation to eliminate the duplicative recall database, it has continued using resources to maintain the second system—resources that could be used on other CFSAN work.

When FDA provided the RES data electronically for our independent analysis, officials told us it was the official source for CFSAN recalls, including the food-labeling-related recalls. We developed criteria for selecting labeling-related recalls on the basis of various labeling terms and sections on food labeling in the Federal Food, Drug, and Cosmetic Act.

FDA agreed that our criteria for identifying labeling-related recalls were valid. In December 2007, FDA provided final fiscal year 2007 data to complete our analysis. Subsequently, in April 2008, as part of our quality assurance procedures, we provided FDA with our list of labeling-related recalls to review for completeness. CFSAN officials informed us in May 2008 that by using their unofficial database, they identified about 250 food- labeling-related recalls that were not in our list. Of the 250, 171 were in the official system data but were not captured by the criteria we used. Regarding the remaining 79 recalls, we were unable to locate them in the RES data provided to us. In technical comments on a draft of this report, FDA noted that the 79 recalls had coding differences. However, FDA did not provide us with the codes that corresponded to the RES data. We had originally thought that these 79 recalls were missing from the official database and, therefore, were not posted on the FDA public Web site— thus, we drafted a recommendation that FDA post all recalls in a timely manner. However, after FDA commented that the differences could be due to coding, we deleted this recommendation. It appears that the 409 labeling-related recalls we identified may be a minimum number and, thus, may understate the number of recalls with labeling violations. Because we did not receive the unofficial database, we did not independently analyze it or assess its validity and reliability.

FDA Reports That Resource Constraints and Limited Authority Challenge Efforts to Carry Out Food- Related Responsibilities, Including Food Labeling

FDA’s Science Board Advisory Committee report, the Commissioner’s May 2008 resource needs assessment, and the Food Protection Plan cite challenges to FDA’s efforts to carry out food safety and other food-related responsibilities, in part, because its resources have not kept pace with its increasing responsibilities—challenges that directly impact its oversight of labeling requirements. In addition, FDA does not have certain authorities that it reports would allow it to better leverage resources and carry out its food-related missions. These authorities could help FDA administer and enforce the food labeling requirements.

FDA Asserts That Resources Have Not Kept Pace with Growing Responsibilities

According to the Science Board report, the demands on FDA have soared, but resources have not increased in proportion to demand. In the May 2008 resource needs assessment, FDA’s Commissioner identified the immediate need for additional resources—for improvements in FDA’s science, information technology, and program capabilities—to ensure the safety of FDA-regulated imports and protect the food supply. Likewise, the Food Protection Plan asserts FDA’s ever-expanding responsibilities—such as safeguarding the evolving food demands of consumers; overseeing the increasing volume, variety, and sources of imported food; and staying ahead of the emerging threats to food safety and security—and all of the skills, technologies, and initiatives that it is planning to meet these new challenges. However, as we have testified, it is unclear what the total costs will be to fully implement the plan; thus, we continue to have concerns about FDA’s lack of specificity on the resource needs.

Although FDA received increased funding for new bioterrorism-related responsibilities following September 11, 2001, staffing levels for CFSAN have declined since then and funding (in constant dollars) has stagnated. Between fiscal years 2003 and 2007, the number of FTE employees in CFSAN headquarters dropped about 20 percent, from 950 to 763, and inspection and enforcement staff decreased by about 19 percent, from 2,217 to 1,806 (see app. IV). While funding in nominal dollars increased from $406.8 million in 2003 to $457.1 million in 2007, when adjusted for inflation, funding in the 2 years is nearly the same—$465.7 million and $465.8 million, respectively—in constant 2008 dollars. At the same time, as we have previously noted, the number of FDA-regulated domestic food firms increased more than 10 percent—from about 58,270 in 2003 to about 65,520 in 2007. Also, the number of different imported food product entry lines has tripled in the past 10 years, and imports account for 15 percent of the food supply. Appendix IV provides detailed information on FDA funding and FTEs for each center.

For fiscal years 1999 through 2007, the FTE staff years for the Office of Nutrition, Labeling, and Dietary Supplements reached its highest level in 2002 (88) and its lowest in 2007 (65), according to data provided by FDA finance and other officials. Within the office, funding and staffing for food labeling activities, as estimated by an FDA finance official, have remained fairly steady since fiscal year 2005, the first year for which FDA staff were able to separate resources for labeling-related activities from other Office of Nutrition, Labeling, and Dietary Supplements work (see table 8).

FDA’s Science Board reported on the growing disparity between FDA resources and responsibilities. Noting that the demands on FDA have soared, while resources have not increased proportionately, the committee concluded that the disparity has made it increasingly “impossible” for FDA to maintain its historic public health mission. In the May 2008 resource needs assessment, the FDA Commissioner identified the immediate need for additional staff to enable the agency to affect its food-safety-related goals. This would benefit administering and enforcing food labeling requirements. In addition, according to FDA officials, the agency generally does not address misleading food labeling because it lacks the resources to conduct the substantive, empirical research on consumer perceptions that it believes it would need to legally demonstrate that a label is misleading, as the agency believes is required by court rulings, such as Pearson v. Shalala, which is discussed in appendix V.

FDA Has Reported That Certain Authorities It Lacks for Food Programs, Including Labeling, Would Help It Leverage Resources and Carry Out Regulatory Responsibilities

The Food Protection Plan identified a number of legislative changes—new authorities FDA recognized were needed, including, among others, the authority to charge user fees for certain reinspections, accredit third-party inspectors for certain reviews, and mandate recalls when voluntary recalls are not effective. FDA has these authorities for certain other products it regulates but not for food labeling activities or most food oversight efforts. In addition, FDA has never used its detention authority under the Bioterrorism Act of 2002 to detain potentially dangerous food because, according to the agency, its other authorities and regulatory tools have been adequate to date to protect public health.

Several FDA centers have the authority to collect user fees for particular activities. For example, FDA’s Center for Devices and Radiological Health has the authority to collect and retain user fees from firms for reviewing and approving premarket applications for medical devices. The center uses the fees to offset the costs of reviewing and approving these applications and to increase staffing levels. In its Fiscal Year 2009 Justification of Estimates for Appropriations Committees for FDA, HHS proposed a reinspection user fee on food industry firms that fail to meet important manufacturing and food safety requirements. This fee would cover the full cost of reinspections and the associated follow-up work. We have presented various ways to design user fees to encourage greater efficiency, equity, and revenue adequacy and to reduce the administrative burden on the agency and payers of the fees. For example, the extent to which a program is funded by user fees should generally be guided by who primarily benefits from the program. If a program primarily benefits the general public (e.g., national defense), it should be supported by general revenue, not user fees; if it primarily benefits identifiable users, such as customers of the U.S. Postal Service, it should be funded by fees; and if a program benefits both the general public and users, it should be funded in part by fees and in part by general revenues. The guide may provide useful direction to FDA as it proceeds with its proposed reinspection user fee. (Funding data presented in app. IV also show user fees collected by some FDA centers.)

Regarding the authority to accredit qualified third-party inspectors, which the Food Protection Plan states will allow FDA to allocate inspection resources more effectively, FDA plans to use these highly qualified parties to, among other things, carry out certain voluntary reviews in foreign food facilities, where few inspections and label reviews are currently done. As we testified in May 2008, FDA’s Center for Devices and Radiological Health has accredited third-party organizations to conduct voluntary inspections of foreign firms that manufacture medical devices, and these third parties completed six inspections in 4 years. We noted that an incentive for firms to participate included the opportunity to reduce the number of inspections conducted to meet FDA’s and other countries’ requirements. Disincentives include bearing the cost of the inspections and the potential consequences that could include regulatory action. We further noted that the small number of inspections raised questions about the practicality and effectiveness of using accredited third-party inspectors to quickly help FDA increase the number of foreign firms inspected.

The Food Protection Plan does not describe how FDA expects to design and implement the proposed accredited third-party inspection program to inspect foreign food firms or how this proposal will help it leverage resources. In contrast, USDA uses third-party Agricultural Commodity Meat Graders—contracted for their expertise—to carry out certain reviews in its livestock and meat grading and certification programs.

FDA’s Food Protection Plan also asserts that the agency needs mandatory recall authority for food. It has this authority for infant formula and medical devices that present a health hazard. Other agencies, such as the National Highway Traffic Safety Administration and the Consumer Product Safety Commission, use their recall authority to help protect consumers from products that can cause serious injuries, such as unsafe infant car seats. We have previously proposed that Congress consider giving FDA mandatory food recall authority.

The Bioterrorism Act of 2002 gave FDA the authority to administratively detain any article of food found during an examination, inspection, or investigation, if it has credible evidence or information indicating that the article of food presents a threat of serious adverse health consequences or death, for labeling and other violations. However, FDA has never used this authority.

According to the agency, its other authorities and regulatory tools, such as its authority to refuse entry of imports under section 801 of the act, have been adequate to date to protect public health. In contrast, USDA has detention authority for meat and poultry products in interstate commerce that its FSIS uses to prevent shipments under its jurisdiction from entering U.S. commerce, if the agency has reason to believe that the food is adulterated or misbranded. USDA reported that, from July through September 2006, its import investigators detained 15 shipments—about 9,500 pounds—of imported meat products.

FDA officials acknowledged that implementing the Food Protection Plan will require additional resources, and that FDA will need to partner with Congress to obtain the additional statutory authorities to transform the safety of the nation’s food supply. However, as we testified in May 2008, FDA’s congressional outreach strategy is general. When we asked FDA officials if they had a congressional outreach strategy, officials said that they had met with various committees to discuss the Food Protection Plan. When we asked if they had provided draft language to congressional committees on the various authorities, FDA officials explained that they had only provided technical assistance, such as commenting on draft bills, to congressional staff when asked.

Key Stakeholders Suggested Actions to Help Mitigate Misleading Labeling and Assist Consumers’ Efforts to Identify Healthy Food

Key stakeholders—officials from health, medical, and consumer organizations in the United States and Europe—advocate a uniform front- of-package symbol to help consumers select healthy food and avoid misleading or confusing labeling. Some U.S. trading partners have implemented voluntary front-of-package nutrition symbols and several U.S. manufacturers and groceries are using front-of-package symbols. In addition, many stakeholders identified or petitioned FDA for other actions that they believe FDA should pursue to avoid misleading labeling and help consumers identify nutritious foods. Some stakeholders noted that taking such actions may require FDA to redirect resources.

Other Countries and Several Key Stakeholders Favor Uniform Front-of-Package Nutrition Symbols

Consumers have reported understanding certain labeling terms, such as “sugar” and “vitamins,” and finding benchmarks (such as daily reference values) helpful in comparing products, but they generally found nutrition labeling confusing, especially certain technical and numerical information, according to a recent synthesis of nutrition studies. For example, consumers had difficulty in understanding the role that nutrients played in their diet, and the relationship between sugar and carbohydrates as well as the terms “cholesterol” and “fatty acids.” While a few studies suggest that many consumers look at Nutrition Facts panels when they buy food for the first time, some studies suggest that consumers may simply look at the information but not process it further. The National Academies’ Institute of Medicine, which is often called on to advise federal agencies on health issues, reported in 2006 that there is little evidence that the information on food labels has a significant impact overall on eating or food purchasing. The institute had previously recommended that FDA and others increase research on the nutrition label and pointed out that manufacturers’ use of nutrition symbols underscores the need to improve strategies for using the food label as an educational tool. In addition, in a November 2007 letter to FDA, the American Medical Association (AMA) stated that there is evidence that consumers have difficulty in making appropriate judgments about which foods are the healthiest.

Several major health and consumer organizations in the United States, as well as in Canada and Europe, advocate mandatory, uniform front-of- package nutrition rating systems to help consumers select healthy foods. In the United States, the AMA and the American Heart Association advocate such a system, and the Institute of Medicine’s 2006 report recommended that food and beverage companies work with government, scientific, public health, and consumer groups to develop and implement an industrywide system. Furthermore, to help consumers choose more nutritious foods, the scientists with expertise in nutrition and public health who developed the 2005 Dietary Guidelines for Americans expressed concern that consumers did not have a scientifically valid system to show nutrient density on food labels, and recommended that HHS and USDA develop this system. In addition, the Center for Science in the Public Interest petitioned FDA in 2006 to develop a simple, uniform, science-based rating system that could be graphically represented on the front of food packages to give consumers consistent, reliable nutrition information.

Although the European Union does not require nutrition labeling for all foods, it does require it on foods that have health or nutrition claims or that have voluntarily added vitamins or minerals, according to a European Union official. In addition, several countries, including the United Kingdom, the Netherlands, and Sweden, have implemented voluntary, front-of-package nutrition labeling systems, while Canada is proposing research on how such systems influence food purchases, among other things, and consulting stakeholders. The European Commission has proposed a mandatory, front-of-package labeling system.

Figure 4 shows the front-of-package nutrition symbols for systems in the United Kingdom, the Netherlands, and Sweden, which help consumers in those countries identify healthy foods.

Consumers and health organizations in many countries have a heightened interest in the benefits of choosing healthy foods, including several that have implemented (see fig. 4) or are considering front-of-package nutrition labeling systems. For example: The United Kingdom: The Food Standards Agency implemented a voluntary front-of-package traffic light symbol to help consumers distinguish between the healthiest choices (green light), less-healthy choices (amber light), and least healthy choices (red light) with respect to fat, saturated fat, salt, sugars, and usually calories, as well. Officials report that preliminary sales data suggest that this system is influencing consumers’ purchases toward healthier products. In addition, manufacturers are developing new products and reformulating less- healthy products so that their foods may move into the amber or green light category, according to U.K. officials. The United Kingdom’s National Heart Forum (an alliance of 50 heart health organizations) has endorsed the traffic light system.

The Netherlands: The Netherlands uses a voluntary front-of-package “healthy choice” symbol, which was developed by the food industry and endorsed by the Ministry of Health. According to a Ministry official, standards for applying the symbol vary by food category, taking into account the characteristics of each category—for example, fiber is included in the criteria for bread products. A foundation was established—the Choices International Foundation—to introduce the symbol to other countries. The qualifying criteria for using the symbol will be reevaluated every 2 years by an independent scientific committee, according to the official.

Sweden: The National Food Administration uses a voluntary front-of- `package keyhole logo to identify the healthiest foods within particular food categories. Products that carry the symbol are lower in fats, sugars, and sodium and contain more fiber than other foods within the same category. According to agency officials, the introduction of the keyhole logo resulted in the development of healthier products and the continuous reformulation of existing products.

Canada: The House of Commons’ Committee on Health’s 2007 report, Healthy Weights For Healthy Kids, recommended that the country’s health agency—Health Canada—phase in a mandatory, standard, simple, front-of-package labeling requirement for prepackaged food, starting with foods advertised primarily to children. In addition, the Chronic Disease Prevention Alliance of Canada supports this recommendation. As of April 2008, Health Canada commented that it is taking several steps, including consulting with stakeholders and proposing consumer research on, among other things, front-of-package symbols.

European Union: The European Commission has proposed legislation that would require prepackaged food to display information on calories, fat, saturated fat, carbohydrates, sugars, and salt on package fronts, according to documents released by the commission. A commission official told us that member states would still be able to promote additional national front-of-package labeling systems if they comply with requirements of the proposed legislation. The European Union’s Commissioner for Health stated that food labels can have a huge influence on consumers’ purchasing decisions, and confusing, overloaded, or misleading labels can be a hindrance to consumers. The European Heart Network (an alliance of 30 heart health organizations in 26 countries) and the European Consumers’ Organization also support mandatory front-of-package labeling.

In the United States, health and consumer associations have developed nutrition symbols to help consumers. For example, the American Heart Association developed the heart-check logo to help consumers identify heart-healthy foods. Currently, over 800 products from over 100 companies use the logo, and one major line of foods was developed with the heart- check criteria as a key driver, according to the association. While most companies reformulate products before applying for the logo certification, the association also works with companies on 20 to 40 products a year to help them meet its criteria. In addition, the Whole Grains Council, a nonprofit consumer group working to increase consumption of whole grains, developed the Whole Grain Stamp to identify products with at least a half serving of whole grains, with the grams of whole grain specified. A “100%” banner can be placed on the stamps when all of the grain is whole grain. The stamps have been used on over 1,700 products from 180 companies in the United States, Canada, and the United Kingdom.

In addition, manufacturers have developed numerous symbols to market their foods to health-conscious consumers, and supermarkets have used symbols to help consumers identify healthier foods. At a September 2007 FDA public hearing on front-of-package and other nutrition symbols, several manufacturers and supermarket chains reported increased sales and reformulations associated with their use of nutrition symbols. For example, Kraft has reported that the more than 500 products carrying its Sensible Solution symbol accounted for a sizable portion of its overall revenue growth. Hannaford, a northeastern supermarket chain, reported that it improved the nutrient quality of its store brand products before introducing its symbol for nutrition quality that it calls Guiding Stars, which is based on mathematical formulas giving a weighted value to many nutrients. Hannaford also reported increased sales for products with stars.

According to the Institute of Medicine, however, the consistency, accuracy, and effectiveness of the proprietary graphics currently in use have not been evaluated or empirically validated, and they may fall short of their potential as guides to more nutritious choices. Many stakeholders also share a concern about the proliferation of such graphics. FDA officials told us that the agency assigned an individual part time to focus on research on nutrition symbols. In comments, FDA told us it has completed one study. In addition, FDA plans to issue a summary of the 2007 public hearing and to identify gaps in the information that stakeholders provided during or after the hearing, at the request of FDA.

The Grocery Manufacturers/Food Products Association opposes mandatory front-of-package nutrition symbols and maintains that nutrition symbols should continue to be voluntary because the industry’s use of symbols to communicate nutrition information is truthful, not misleading, and consistent with FDA’s clear regulations for making representations about nutrition. According to the association, in recent years, many food companies have reformulated thousands of food products to improve their nutrient profiles, and many manufacturers are using symbols and related graphic designs on labels to supplement the Nutrition Facts panel. In addition, the Keystone Center, an industry-funded nonprofit organization, has held discussions to determine whether it should develop a voluntary front-of-package system. In 2007, the center convened a group of experts from industry, government, consumer, and academic organizations to study the various systems used in the United States. As of July 2008, this group had not released information on the status of its effort. According to FDA officials, FDA acts as an observer in this group. However, FDA has not yet collaborated with the relevant federal agencies and stakeholders with nutrition expertise to evaluate labeling approaches and options.

Stakeholders Suggested Other Actions That FDA Should Take to Help Consumers Identify Healthy Foods

Several medical, health, and consumer association stakeholders suggested FDA actions that they believe would mitigate misleading and confusing labeling. While some stakeholders noted that these actions may require FDA to redirect resources, they also believe such actions would help consumers identify healthy foods.

Eliminate qualified health claims: Stakeholders, such as the AMA, have suggested that FDA eliminate the use of qualified health claims on food labels because consumers cannot distinguish among the four levels of scientific support that FDA uses—significant scientific agreement, scientific evidence that is not conclusive, limited scientific evidence that is not conclusive, and very little scientific and preliminary evidence. According to the stakeholders, these claims confuse or mislead consumers and may encourage the consumption of foods with little or no health benefits. This view was supported by findings from 2005 and 2007 FDA studies. In commenting on a draft of this report, FDA questioned whether it had the authority to eliminate the use of such claims. See appendix V for more information on FDA’s administration of health claims.

Establish criteria for characterizing the amount of whole grains in food: The use of the term “whole grain” increased in popularity after the 2005 Dietary Guidelines underscored the importance of these foods in the American diet. Some studies suggest that consumers, as well as dieticians and other nutrition experts, cannot accurately identify which foods are primarily whole grain. In 2004, General Mills, Inc., petitioned FDA to establish criteria for the phrases “excellent source of whole grains,” “good source of whole grains,” and “made with whole grains” to help prevent false or misleading labeling of grain products. FDA denied the petition, but it acknowledged the need for action and stated that claims such as “good source” have been used only with regard to nutrients—not foods—and that FDA needs to consider how to classify different kinds of statements and whether public comments are needed. In 2006, FDA developed draft guidance that identified what foods it considered “whole grain.” FDA officials stated that they expect to continue work on this issue when they can hire additional staff.

Prohibit foods that contain substantial amounts of saturated fat from being labeled as “trans fat free”: FDA has not objected to products being labeled as “trans fat free” that have less than 0.5 grams of trans fat per serving, and does not restrict the amount of saturated fat in “trans fat free” foods. However, as stakeholders pointed out, saturated fat, like trans fat, raises low density lipoprotein (LDL or “bad cholesterol”) levels in the blood, increasing the risk of heart disease. Initially, FDA proposed limiting “trans fat free” labeling to foods with less than 0.5 grams of saturated fat, but FDA later stated that insufficient scientific information existed to support whether 0.5 was the appropriate level. FDA is evaluating available research to determine how to best address the issue.

Require the labels of foods commonly consumed in one sitting to show total calories, fat, and other nutrition information: Several health and consumer stakeholders believe consumers may be misled by Nutrition Facts panels for foods, such as large sodas, candy bars, muffins, and other foods, that are normally consumed in one sitting, but are labeled as two or more servings. In 2005, the Institute of Medicine recommended that FDA revise requirements so that foods typically consumed in one sitting prominently display the total calorie content of the product as well as the standard per-serving format. Industry- sponsored research found that the participants in four focus groups generally favored the listing of nutrients for the whole container, although some want nutrients listed for both the full container and per serving. In April 2005, FDA published an advance notice of proposed rulemaking requesting comments on this issue. In 2008, FDA noted that it needed to review the comments submitted in response to the 2005 notice, and to coordinate this area with its plans to revise the daily intake reference values (used to establish the daily values for the Nutrition Facts panel) described in a 2007 advance notice of proposed rulemaking. The Grocery Manufacturers/Food Products Association opposes requiring nutrition information for the entire contents of the package on the food label, noting that nutrition information for the entire package would give consumers “permission” or “encouragement” to eat the entire package.

Clarify the definition of “natural” as it applies to food: The Sugar Association has petitioned, with the support of the Center for Science in the Public Interest and others, that FDA define the term “natural” on the basis of USDA’s definition, as articulated in its Foods Standards and Labeling Policy Book. USDA policy defines “natural” to permit only minimal processing, including roasting, drying, and fermenting, to preserve or make food edible. Under this USDA policy, foods that go through certain processes, such as chemical bleaching, that fundamentally alter the raw product, are not considered “natural.” Both groups assert that FDA allows manufacturers to label products as “100% natural” even if they contain highly processed ingredients, citing partially hydrogenated oils and high fructose corn syrup. However, the Corn Refiners Association believes that USDA and FDA should have different definitions of “natural” because, among other things, the two agencies regulate fundamentally different products—USDA-regulated meat and poultry products are understood to be less processed than FDA-regulated foods. FDA acknowledged in 1993 that clarifying the definition of “natural” would abate some of the complaints that the term’s use is misleading. More recently, FDA noted that it lacks resources to undertake a rulemaking to revisit the definition.

Conclusions

With its current approach to oversight and enforcement, FDA cannot be assured that food firms are complying with labeling requirements. In light of the resource constraints and many responsibilities that FDA has reported, it is especially important that FDA start by making better use of the tools and data it has available. However, FDA’s use of warning letters and enforcement actions have at best held steady, despite increased responsibilities. FDA is not using the information that it has to inform managers’ decisions on setting priorities and allocating resources. FDA does not maintain in an accessible format, or analyze in routine reports, information it has on such areas as labeling violations discovered during inspections, the results of tests on the accuracy of labels, warning letters, recalls, and import refusals. Moreover, although information on whether and how labeling violations are addressed is critical for effectively overseeing the labeling program. FDA does not (1) centrally maintain information on regulatory meetings and (2) know whether field offices are applying the same criteria for meetings and whether meetings are effective.

While FDA posts information for the public on its Web site—such as warning letters, import refusals, and import alerts—it does not ensure that the information is complete and posted promptly. As a result, the public may not have the information needed about products in violation of the law to inform their purchase decisions. Furthermore, CFSAN has continued to expend resources maintaining a duplicative data system for food-related recalls, which it agreed to eliminate in 2004. We reiterate our prior recommendation that FDA should eliminate this system.

Going forward, to better administer and enforce labeling requirements, FDA has begun to pursue several authorities that are available to other centers within FDA and other regulatory agencies. In particular, CFSAN does not have the authority to charge user fees, accredit third-party inspectors, or require recalls for most food. As a result, CFSAN is not as well positioned as other programs that have these authorities to carry out its responsibilities. FDA’s Food Protection Plan recognized the need for additional resources and new authorities, to ensure the safety of the Nation’s food supply. However, as FDA proceeds in seeking new authorities it will need to ensure that any it chooses to pursue are designed and implemented efficiently and appropriately and, in particular, that any user fees it develops are well-designed and based on best practices and sound criteria, such as that specified in GAO’s Federal User Fees: A Design Guide. In addition, any FDA program for accrediting third parties would likely benefit from lessons learned in another FDA-accredited third-party program. Moreover, as we have previously testified, while FDA’s plan is a good first step, it does not contain a clear description of resources and strategies. Congress will need those details to assess the likelihood of the plan’s success.

Finally, the many issues stakeholders raised about label information that they believe confuse consumers compete for FDA’s attention and resources. Nonetheless, FDA has information on the approaches that U.S. industry and other countries are taking to give consumers simplified nutrition information at a glance with front-of-package symbols. However, given FDA’s competing priorities and its minimal progress in addressing misleading labeling thus far, collaboration with other federal entities and stakeholders could afford an opportunity for FDA to better leverage resources to pursue front-of-package labeling or other initiatives for minimizing consumer confusion.

Recommendations for Executive Action

We recommend that the Commissioner, FDA, take the following seven actions: Ensure that labeling office managers have the information they need to oversee compliance with food labeling statutes and regulations by maintaining, in a searchable format, data on food labeling violations, including the type of violation and information about corrective actions taken or, if no action was taken, the reason why; analyzing violation data in routine management reports; and tracking regulatory meetings related to food labeling violations and analyzing whether regulatory meetings are an effective use of resources.

Ensure that the public has timely access to information on food labeling violations that may have serious health consequences by requiring all of the centers and offices to post on FDA’s public Web site, within a specified time frame, key information, such as all warning letters; statistics on serious enforcement actions (e.g., import refusals) by country, type of food, and the problem found (e.g., undeclared allergen); and information (e.g., product identification and exposure symptoms) on violations that FDA classifies as serious.

Better leverage resources to carry out food safety and other regulatory responsibilities, including administering and enforcing labeling requirements, by providing Congress with specific, detailed information on the new statutory authorities identified in the Food Protection Plan, such as the authority to charge user fees, accredit third-party inspectors, and mandate food recalls, with specific information on how these authorities would help achieve its mission; posting on FDA’s public Web site periodic updates of the status of implementation of the Food Protection Plan, including goals achieved and time frames for completing the remaining work; and collaborating with other federal agencies and stakeholders experienced in nutrition and health issues, to evaluate labeling approaches and options for developing a simplified, empirically valid system that conveys overall nutritional quality to mitigate labels that are misleading to consumers.

Agency Comments and Our Evaluation

We provided a draft of this report to HHS for review and comment. In written comments, FDA stated that the report raised some important issues regarding its regulation of food labeling. FDA did not dispute the report’s data, analyses, or specific findings. It commented, however, that the report inappropriately references food labeling as part of its food safety mission, although it acknowledges that there may be some aspects of food labeling that can affect the safe use of food. That notwithstanding, FDA directs investigators to review at least three labels during food safety inspections. Moreover, food labeling responsibilities are part of FDA’s statutory mission, and the Federal Food, Drug, and Cosmetics Act and FDA’s regulations set out FDA’s labeling responsibilities. FDA also stated that within its overall public health mission, it has a multitude of competing priorities. We acknowledged FDA’s competing priorities in the report’s conclusions and framed the recommendations so as to help manage these competing priorities by better leveraging resources and using available tools and data for risk-based decisions.

Regarding our first three recommendations for ensuring that managers have the information they need to oversee compliance with food labeling statutes and regulations—by (1) maintaining data on labeling violations and the corrective actions taken, in a searchable format, (2) analyzing that data in routine management reports, and (3) tracking regulatory meetings on labeling violations to assess whether they are an effective use of resources—FDA agreed that being able to track any and all information that would allow investigators to better do their jobs would be useful to the agency. However, FDA stated that data collection requires time and effort and it is important to make sure that data entry does not become so burdensome that it takes away from other investigative work. FDA did not commit to taking any actions in response to these recommendations. We maintain that FDA cannot make risk-based decisions, such as allocating resources efficiently and effectively, without careful analysis of this type of data on its regulatory programs—FDA’s systems already maintain substantial data on food labeling and related violations. Analyzing these data for routine reports could help inform labeling managers’ decisions and help them target labeling resources. We stand by these recommendations.

With respect to our recommendation for ensuring the public has timely access to information on labeling violations that may have serious health consequences—that FDA require centers and offices to post key information (e.g., warning letters or import refusals) on FDA’s public Web site and specify time frames for doing so—FDA commented that it already posts and maintains much of this information, and that it would keep the information as up to date as possible, given resource and time limitations. However, as we discuss in this report, FDA’s target time for issuing warning letters and posting them is 4 months after violations are found. Providing information that is complete and timely can help the public avoid potentially dangerous food and make healthy food purchase decisions. The draft we sent to FDA for comment recommended that FDA post all recalls to its public Web site in a timely manner. We eliminated recalls from this recommendation because, in technical comments, FDA told us that the recalls in CFSAN’s unofficial database that we thought were missing from RES were the result of coding differences. We stand by this recommendation as amended.

Our final three recommendations are aimed at better leveraging resources. Two are aimed at helping FDA keep the Food Protection Plan on track by (1) providing specific, detailed information to Congress on how the new authorities in the Food Protection Plan will help FDA achieve its mission and (2) posting periodic updates on the status and time frames for implementing the plan on FDA’s public Web site. FDA stated that the plan was designed to address food safety and defense concerns, although some of the actions presented in it may have some bearing on food labeling issues. It was not our intent to suggest that the plan’s primary focus was on food labeling; we have clarified this in the report. Nonetheless, in this report and in recent testimonies, we have expressed our concerns that FDA has not given Congress sufficient, detailed information on how it will implement the plan and use the new authorities—information Congress needs to support the initiatives. Furthermore, updates can reassure the public of FDA’s progress. FDA did not explicitly address what action, if any, it would take in response to these two recommendations. With respect to our last recommendation—that FDA collaborate with other federal agencies and stakeholders on evaluating options for developing a simplified, empirically valid system for conveying overall nutritional quality to help consumers—FDA agreed with the need to evaluate the communication effects of nutrition symbols and presented a research agenda. Because the agenda appears to be ambitious given FDA’s limited resources, our recommendation will continue to encourage FDA to collaborate with other federal agencies and stakeholders who may be able to contribute resources, as it evaluates options to develop a simple, valid system to communicate nutritional quality.

FDA’s written comments and our detailed evaluation appear in appendix VI. FDA also provided technical comments, which we incorporated throughout the report, as appropriate.

As agreed with your office, unless you publicly announce the contents of the report earlier, we plan no further distribution of it until 30 days from the date of this report. At that time, we will send copies of the report to the appropriate congressional committees, the Secretary of Health and Human Services, the Commissioner of the Food and Drug Administration, and other interested parties. We will also make copies available to others upon request. In addition, the report will be available at no charge on the GAO Web site at http://www.gao.gov.

If you or members of your staff have any questions about this report, please contact me at (202) 512-3841 or shamesl@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff who made key contributions to this report are listed in appendix VII.

Objectives, Scope, and Methodology

This report examines (1) the Food and Drug Administration’s (FDA) efforts to ensure that domestic and imported foods comply with food labeling requirements, including those prohibiting false or misleading labeling; (2) the challenges FDA faces in its efforts to administer and enforce food labeling requirements; and (3) the actions that stakeholders from health, medical, and consumer organizations believe are needed to mitigate the effects of food labeling practices they consider misleading and to help consumers identify healthy food.

For the purposes of this report, our definition of “food” includes conventional food, dietary supplements, infant formula, and medical food, but not animal feed, which the Federal Food, Drug, and Cosmetic Act includes in its definition of food. We did not determine whether any particular food labeling was false or misleading. We also did not evaluate how efficiently FDA used its resources or the impact of changing priorities; nor did we compare FDA resource trends with other federal agencies’ resource trends. Regarding data for labeling-related oversight, we analyzed the food firms inspected for 7 fiscal years (2001 through 2007); nutrient labeling samples for 7 fiscal years (2000 through 2006); warning letters and enforcement actions related to imports for 6 fiscal years (2002 through 2007); and seizures and injunctions for 10 fiscal years (1998 through 2007)—the periods for which reliable and comparable FDA data were available. Funding and staffing data for FDA, the Center for Food Safety and Applied Nutrition (CFSAN), and the Office of Regulatory Affairs (ORA) were available for 10 fiscal years (1998 through 2007). For the Office of Nutrition, Labeling, and Dietary Supplements, which began maintaining comparable data in 1999, we report funding and staffing for 9 fiscal years (1999 through 2007). Unless otherwise stated, data are presented by federal fiscal year.

To determine FDA’s efforts to ensure that domestic and imported foods comply with food labeling statutes and regulations, including those related to false or misleading labeling, we analyzed FDA’s and CFSAN’s plans and reports, guidance and regulations related to food labeling, and policies and actions taken in response to petitions and complaints over the last 6 years.

We also analyzed data from the Field Accomplishments and Compliance Tracking System (FACTS) and Operational and Administrative System for Import Support (OASIS) on domestic, foreign, and import inspections conducted by FDA, along with domestic inspections conducted by states under contract with FDA. To determine the number of warning letters issued by FDA, we worked with FDA's Freedom of Information Office and ORA to address several problems we found during the course of our review regarding the online database of warning letters. After addressing those problems, we then searched that database for warning letters that were related to food labeling and characterized each letter according to the product and the violations cited. We also searched FDA's Recall Enterprise System (RES) for recalls identified with food labeling violations as one of the reasons for the recall. Regarding violations of Nutrition Facts panel regulations, we analyzed data from FACTS for domestic and imported food, and also analyzed studies conducted on the accuracy of nutrient labeling. We analyzed data from this system on consumer complaints to determine the extent to which they were tracked. Finally, we also analyzed data from OASIS on food labeling violations for imported food and collected information on seizures and injunctions focused on food labeling violations.

To identify challenges, we analyzed funding and staffing data for FDA, CFSAN, ORA, and the Office of Nutrition Labeling and Dietary Supplements and reviewed FDA oversight and enforcement authorities, and court rulings regarding FDA labeling. For comparison, we examined some of the same information for the U.S. Department of Agriculture’s Food Safety and Inspection Service and the Federal Trade Commission, which also oversee and enforce requirements related to food labeling, such as those prohibiting false or misleading information about food.

We assessed the reliability of the data from FACTS and OASIS that we used in this report and found them to be sufficiently reliable for these purposes. To assess the reliability of these data, we (1) performed electronic testing for obvious errors in accuracy and completeness, (2) reviewed related documentation, and (3) worked closely with agency officials to identify any data problems.

In addition, we assessed the reliability of the data from the RES. FDA recently informed us that CFSAN has continued to use an unofficial database that it agreed to eliminate in 2004, which contains additional information on recalls that would potentially fit our criteria for analysis. Despite any limitations of the RES, we believe these data to be sufficiently reliable to indicate a minimum number of recalls for the time period we reported.

To determine stakeholders’ views, we analyzed petitions, public responses to petitions, and ideas presented during FDA’s November 2007 public labeling meetings. We discussed these and other suggestions with health and medical associations, including the American Cancer Society, American Diabetic Association, American Heart Association, American Dietetic Association, American Medical Association, and National Academies’ Institute of Medicine; the Center for Science in the Public Interest; the Grocery Manufacturers/Food Products Association; the Association of Food and Drug Officials; and selected states (California, Connecticut, Florida, New York, Texas, and Wisconsin) that the Association of Food and Drug Officials and others groups identified as being active in food labeling issues. In addition, we contacted officials of health or related departments in Canada, the United Kingdom, Sweden, the Netherlands, and the European Commission to collect information on their use or plans for use of nutrition symbols. We did not independently verify the statements of foreign law. We also analyzed consumer studies conducted by FDA, industry, and others to identify whether the findings supported or failed to support stakeholders’ views. These studies were identified by health, consumer, and industry experts and through literature searches. For the data we included in our report, we obtained frequency counts, survey instruments, and other documents, to review the wording of questions, sampling, mode of administration, research strategies, and the effects of sponsorship. We used only data that we judged to be reliable and valid.

We conducted this performance audit from January 2007 through September 2008 in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

FDA-Regulated and -Inspected Domestic and Foreign Food Firms, Fiscal Years 2001 through 2007

Nearly half of the domestic firms that are subject to FDA regulation are food firms—manufacturers, processors, and other food businesses. Table 9 presents the number and percentage of domestic food firms that are subject to FDA’s food regulations and the total number of domestic firms in all industries (e.g., pharmaceuticals and medical devices) that are subject to FDA regulation, for fiscal years 2001 through 2007.

Regarding firms inspected under all FDA regulatory programs, food-related firms have accounted for between 15 percent and 30 percent of foreign firms inspected and between 45 percent and 56 percent of domestic firms inspected. Table 10 presents the number and percentage of foreign and domestic food-related firms inspected and the total number of FDA- regulated firms inspected, for fiscal years 2001 through 2007, by FDA and states under contract with FDA.

FDA Inspections of Food Firms in Foreign Countries, Fiscal Years 2001 through 2007

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Funding and Staffing Information by FDA Mission, Fiscal Years 1998 through 2007

Center for Biologics Evaluation and Research

Center for Devices and Radiological Health National Center for Toxicological Research $1,278.1 Includes GSA rent, other rent, rent-related activities, White Oak Consolidation, and the FDA Buildings and Facilities Appropriation.

Includes tobacco program, Office of the Commissioner, Office of Policy, Office of External Affairs, Office of Operations/Orphan Grants Administration, Office of Management and Systems, and Central Services.

Other activities funded in part by user fees, including Office of the Commissioner, Office of Policy, Office of External Affairs, Office of Operations/Orphan Grants Administration, Office of Management and Systems, Central Services, Export Certification, and Color Certification Fund.

FDA’s Administration of Health Claims in Response to the Pearson v. Shalala Ruling

The Nutrition Labeling and Education Act of 1990 (NLEA) amended the Federal Food, Drug, and Cosmetic Act to include provisions that govern the use of health claims on food labeling. For conventional foods, the NLEA requires that any claim that expressly or by implication characterizes the relationship of a nutrient to a disease or health-related condition must be authorized by the Secretary of Health and Human Services (delegated to FDA) through a regulation. Under the NLEA, FDA may authorize a health claim for a conventional food if it determines, based on the totality of publicly available scientific evidence, that there is “significant scientific agreement” among experts—qualified by scientific training and experience to evaluate such claims—that the claim is supported by such evidence. Although the NLEA also provided for the use of health claims in dietary supplement labeling, Congress did not require dietary supplement health claims to be subject to the same statutory procedures and standards as conventional food health claims. Instead, dietary supplement health claims were to be subject to procedures and standards established in regulations issued by the Secretary of Health and Human Services (delegated to FDA).

In 1991, FDA published a proposed rule in the Federal Register, proposing the implementation of the statutory procedures and standards for health claims for conventional food, and proposing to adopt those same procedures and standards for dietary supplement health claims. However, before the rule could be finalized, Congress passed legislation that generally prohibited FDA from implementing the NLEA with respect to dietary supplements until December 15, 1993. Therefore, in January of 1993, when FDA adopted the final rules for health claims for conventional foods, it did not finalize rules for dietary supplement health claims. However, 1 year later, after the prohibition of implementation of NLEA for dietary supplements had expired, FDA adopted a rule that subjected dietary supplement health claims to the same general requirements that applied to conventional foods. Under those rules, any person wanting to include a health claim on a conventional food or dietary supplement label must petition FDA for authorization before including the claim on the label. If FDA determines, based on the totality of publicly available information, that there is significant scientific agreement in support of that claim, it will authorize its use by issuing it in regulation.

FDA’s health claim regulations for dietary supplements were the subject of several lawsuits in the 1990s. In a case known as Pearson v. Shalala, the U.S. Court of Appeals for the District of Columbia Circuit held that the First Amendment does not permit FDA to prohibit a potentially misleading health claim on the label of a dietary supplement, unless FDA considers whether a disclaimer on the product’s label could negate the potentially misleading nature of that claim. Specifically, the court stated that although inherently or actually misleading information in food labeling or advertising may be prohibited, potentially misleading information cannot face an absolute prohibition. Instead, potentially misleading information may be regulated only if those regulations directly advance a substantial government interest, and offer a reasonable fit between the government’s goals and the means chosen to accomplish those goals. The court found a substantial interest in protecting the public health and preventing consumer fraud. However, it found that FDA’s regulation requiring health claims to be supported by significant scientific agreement did not directly advance the interest in public health, and, even though the regulations directly advanced the interest in preventing consumer fraud, the fit between the goals of the regulations and the means employed—an outright ban without the possibility of a disclaimer—was not reasonable.

Following the decision in Pearson, FDA announced its plan to respond, stating that it would deny, without prejudice, all petitions for the use of dietary supplement health claims that did not meet the significant scientific agreement standard while the agency conducted and completed a rulemaking to reconsider the procedures and standards governing such claims. Then, according to FDA, once a rule was finalized, the agency would revisit the petitions it had denied. However, in 2000, citing concerns over additional First Amendment challenges, FDA announced plans to modify that policy. FDA stated that it would continue to approve dietary supplement health claims that met the significant scientific agreement standard, but it would exercise its enforcement discretion and not take action against dietary supplement health claims that failed to meet the standard under certain circumstances. Specifically, upon the submission of a valid petition for preapproval of a dietary supplement health claim, if FDA did not find significant scientific agreement, but, in evaluating the weight of the evidence, did find that the scientific evidence in support of the claim outweighed the scientific evidence against it, and consumer health and safety were not threatened, the agency would inform the petitioner of conditions under which the agency would refrain from taking enforcement action against the health claim. If the scientific evidence against the health claim outweighed the scientific evidence in support of it, FDA would deny any use of the health claim.

Then, in 2002, the agency announced the availability of guidance, updating its approach to implementing the Pearson decision. In large part, the procedures remained the same; however, FDA included health claims for conventional foods under the procedures, even though the Pearson case directly addressed only dietary supplements. FDA stated that it believed that such a move would precipitate greater communication in food labeling and thereby enhance public health. In addition, FDA stated that including health claims for conventional foods in its enforcement discretion policy would help avoid further constitutional challenges. Subsequently, in 2003, FDA announced the availability of two new guidance documents describing interim procedures that, among other things, addressed a then recent U.S. District Court for the District of Columbia decision that found the weight of the evidence standard that FDA first articulated in guidance in 2000 was inappropriate. According to the district court in that case, FDA should evaluate qualified health claims based on the presence of “credible evidence,” not the weight of the evidence. The 2003 guidance documents set forth new procedures for qualified health claims for conventional foods and dietary supplements. Specifically, qualified health claim petitions would be evaluated using an evidence-based ranking system that would rate the strength of the publicly available scientific evidence. A claim would be denied if there was no credible evidence to support it. Otherwise, based on the competent and reliable scientific evidence in support, a claim would be assigned to one of four ranked levels—the first level being “significant scientific agreement among qualified experts” and the remaining three levels being for claims supported by some lower level of credible evidence. Each of the three categories not ranked as supported by significant scientific agreement would correspond to one of three standardized qualifying statements (i.e., disclaimers). So long as the qualified health claim bore the appropriate language, met other applicable health claim regulations, and adhered to criteria established in FDA’s letter of enforcement discretion in response to the petition, FDA would exercise its enforcement discretion and refrain from acting against the health claim.

In November of 2003, FDA published an Advance Notice of Proposed Rulemaking, recognizing the need to establish transparent, long-term procedures that have the effect of law. In that announcement, FDA presented several regulatory alternatives: (1) incorporate the interim procedures and evidence-based ranking system we have previously discussed into regulation; (2) subject health claims to notice-and-comment rulemaking, as before Pearson, but reinterpret the “significant scientific agreement” standard to refer to the evidence supporting the claim being made, instead of the underlying substance-disease relationship; or (3) treat qualified health claims as outside the NLEA and regulate them on a postmarket basis (i.e., pursue the product as misbranded if the health claim renders the label false or misleading because the claim lacks substantiation). FDA does not plan to work on this proposed rulemaking this year. In May of 2006, FDA issued guidance concerning FDA’s implementation of qualified health claims process. In that guidance, FDA reaffirmed the 2003 interim procedures and stated that “FDA is currently considering various options regarding the development of proposed regulations related to qualified health claims,” and “…n the meantime, the agency plans to review qualified health claim petitions on a case-by- case basis.”

Comments from the Food and Drug Administration

The following are GAO’s comments on the Department of Health and Human Service’s (HHS) letter dated August 19, 2008.

GAO Comments

1. FDA commented that the report did not place food labeling in the appropriate context, given FDA’s overall public health mission and competing priorities. We believe the food labeling responsibilities are part of that mission. The Federal Food, Drug, and Cosmetic Act specifically describes FDA’s mission to include protecting the public health by, among other things, ensuring that “foods are safe, wholesome, sanitary, and properly labeled.” FDA also commented that the report failed to account for all the varied initiatives that FDA and HHS have undertaken to fight obesity and ensure that foods are labeled in a manner that fosters consumer education and healthy choices. The subject of this report is food labeling, not obesity. With respect to labeling initiatives to help consumers make healthy food choices, the report identifies several areas where stakeholders believe that FDA falls short. 2. Although FDA said that it does not consider food labeling part of its food safety mission, it does include reviewing labels as a required step in a food safety inspection. Also, overseeing industry compliance with labeling requirements is part of FDA’s food oversight responsibilities and labeling laws help consumers ensure that the food they buy is safe for them eat. That said, since FDA made this distinction, we revised the wording in some places in the final report. 3. FDA took issue with the report’s frequent references to the Food Protection Plan. FDA stated that the plan was developed to address food safety and defense, although it may have some bearing on food labeling issues. It was not our intent to suggest that the plan’s primary focus was on food labeling, and we have clarified this in the report. The report discusses the Plan’s potential to help FDA carry out its food regulatory responsibilities and discusses certain provisions that, if implemented, may be useful tools in monitoring and enforcing the food labeling requirements. 4. FDA correctly noted that the report does not evaluate how efficiently FDA used its resources or the impact of its changing priorities, although we did examine resources for food labeling. For example, the report provides 10 years of budget data on FDA, with detailed data for each center, including (1) total staffing and funding, (2) the portion of Office of Regulatory Affairs’ staffing and funding for inspections and other oversight, and (3) staffing and funding supported by user fees. However, because FDA was not able to provide risk-based priority plans or annual work projections for all labeling activities, we could not determine how efficiently labeling resources were used or the impact of changing priorities on labeling. 5. FDA contended that most misleading food labeling violations do not present a high risk to public health. However, FDA has not conducted the research to identify which food labels are misleading and therefore has little or no basis for determining the health impacts of misleading labeling violations. 6. FDA commented that it does not believe that tracking and analyzing data and providing routine reports on food labeling violations is the best use of its resources, given competing priorities. We maintain that risk-based decisions, such as allocating resources effectively, must include careful analysis of this type of data on regulatory programs. Moreover, FDA already collects most of these data so resource investment to generate the reports should be minimal and worth the benefits of ensuring that managers’ decisions are well-informed and risk-based. As FDA rolls out several initiatives for improving its information technology systems, which it states are under way, HHS may want to provide FDA managers with training on using the systems as management tools. 7. FDA said it agreed that being able to track any and all information that would allow its investigators to better do their jobs would be useful to the agency, but that data collection requires time and effort. FDA continued, it is important to make sure that data entry does not become so burdensome that it takes away from other investigative work. However, as we previously noted, FDA already collects most of these data. With a small resource investment, analyzing these data in reports can help managers make more informed decisions. 8. FDA implied that it may not have the resources to keep data on the public Web site up to date. However, providing consumers with information that is timely and complete can help them avoid potentially dangerous food and make healthy food purchases. 9. FDA commented that the report suggests in several places that the only context in which FDA detains food is under the Bioterrorism Act, and that that FDA has another type of detention authority that applies to imported articles. However, the report does discuss FDA’s other detention authority under section 801(a) of the Federal Food, Drug, and Cosmetic Act. The report refers to these actions as “import refusals," which is the term that FDA currently uses for these enforcement actions. We added a footnote in the text to note this. 10. FDA's statement—that its survey indicated that 70 percent of adults said they look at the Nutrition Facts panel the first time they purchase a food—is misleading. In that survey, 44 percent of respondents told FDA that they "often" read the panel the first time they purchase a food, and 25 percent "sometimes" read the panel at that time; while 31 percent "rarely" or "never" read the panel. 11. FDA commented that (1) court decisions, beginning with Pearson v.

Shalala, hold that the First Amendment precludes FDA from prohibiting the use of qualified health claims unless FDA can show that the claim is inherently misleading, or if the claim is only potentially misleading, that the use of a disclaimer would not remedy the claim’s potential to mislead, and (2) that absent consumer research or other evidence that satisfies the criteria set by the court in Pearson v. Shalala, FDA does not have the authority to eliminate qualified health claims as a class of claims. We added language to the report to acknowledge FDA’s position. 12. FDA commented that, contrary to our report, FDA’s 2005 and 2007 qualified health claims experiments did not find that qualified health claims might encourage the consumption of foods with little or no health benefits. Our report states that, according to the stakeholders we consulted, “… these claims confuse or mislead consumers and may encourage consumption of foods with little or no health benefits.” It then states that “his view was supported by findings from 2005 and 2007 FDA studies.” This statement is consistent with FDA’s findings. According to its public Web site, those studies on qualified health claims found that “qualifying statements … were not understood by consumers” and “even when … understood as intended, qualifying statements had unexpected effects on consumers’ judgments about the health benefits and overall healthfulness …. ”

GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

In addition to the contact named above, Erin Lansburgh, Assistant Director; Beverly Peterson, Analyst-in-Charge; Kevin S. Bray; Abby Ershow; Bart Fischer; Jennifer Harman; Natalie Herzog; Luann Moy; Allison O’Neill; Minette Richardson; Carol Herrnstadt Shulman; and Marcia Whitehead made key contributions to this report.