Title: DISEASE-PREVENTION CLAIMS AND THE FIRST AMENDMENT: "WHO WILL PROTECT US FROM OUR PROTECTORS?" (1994 Third Year Paper)
Author(s): T. Lefko
Subject & Subject keywords: Food and Drug Law "food labeling" "health claims" "nutrition labeling and education act"
Abstract:The area of disease-prevention claims ("health claims") for food poses a broad spectrum of dilemmas that often arise in the food and drug law area and in other regulatory situations. These recurring questions include: How does an agency balance the public's right to information with the agency's desire to prevent consumer deception? Given an agency's broad mandate to protect public health, what type of consumer should it aim to protect with its limited resources? What should an agency do in the face of uncertainty? To what extent, and under what conditions, is informed choice desirable? How much of an agency's role is or should be educational? How should an agency balance consumers' need for information with the problem of information overload?

This paper will attempt to address these and other issues in the context of the arguments over the First Amendment constitutionaljty of FDA's recently revised treatment of health claims for food. Ultimately, this paper concludes that the FDA's approach is not only open to attack on First Amendment grounds, but also misconceived from an overarching policy perspective. This paper will ultimately advance an alternative approach which, although not without its own problems, would likely survive scrutiny on First Amendment grounds and also address the major policy questions set forth above.