it does carefully monitor Spanish-language media for misleading claims directed to Hispanic communities. Schneeman pointed out that the FDA has provisions for the dual labeling of food products in Spanish and English. The agency also has outreach and education programs for Hispanic communities. For example, the Spot the Block program has a component aimed at getting Spanish-speaking communities to make greater use of the Nutrition Facts label. Similarly, Landa said that the front-of-package labeling initiative will include a public education campaign focused on particular groups and using multiple languages. “We understand that there are different communities that will use these labels differently, and we need to structure our public education campaign accordingly,” he said.
In response to a question about how the FDA can enforce the menu labeling provisions for companies that fail to comply, Landa suggested that the enforcement tools available to the agency are not a good fit with the regulations. The agency can seize products, issue injunctions for failures to comply, or prosecute, but it lacks the authority to seek civil monetary penalties. If states issue laws that are identical to federal requirements, the state laws will not be preempted, and the states can then use whatever enforcement mechanisms are available to them. “My own view,” said Landa, “is that the enforcement mechanism that would work in this circumstance is a fine, under some minimal administrative process that met the requirements of constitutional due process. But we don’t have that authority.”
Joseph Thompson, a member of the IOM’s Standing Committee on Childhood Obesity Prevention, asked whether federal agencies view childhood obesity as an epidemic and therefore deserving of special treatment, or as a new issue that should be tackled through regular processes. For example, the outbreak of H1N1 influenza was treated as an epidemic and led to the expenditure of hundreds of millions of dollars to buy vaccines of uncertain efficacy. Vladeck responded that labeling childhood obesity an epidemic would not necessarily be crucial to the FTC’s actions. The agency already views the situation as critical and is devoting “extraordinary resources” to address it. In its most recent study of food marketing, for example, the FTC asked 48 companies for enormous amounts of data involving many hundreds of products. “This is a massive undertaking,” said Vladeck.
Landa said that the increasing prevalence of childhood obesity has not changed how the FDA uses its statutory tools but has created a strong sense of urgency. For example, the agency has issued three guidance documents on menu labeling in the past 8 months, each of which represents considerable effort since the statutes are not necessarily clear, and the process for issuing such documents can be cumbersome. Schneeman observed that the FDA has entered into an increasing number of partnerships with other federal agencies to accelerate progress on the issue.