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tee has not, however, gone beyond this recognition, concluding further that the publication by the agency of the proposed regulation and its preamble should not affect its recommendations to FDA.


As part of its process of collecting State laws and regulations that might be preempted by NLEA, the Committee specifically requested guidance from States and localities in defining adequate implementation for the purposes of this study. The responses to this request took a number of different forms but can be generally summarized as follows.

The Association of Food and Drug Officials (AFDO) identified the factors that it believed influence adequacy:

We firmly believe that a regulation becomes "adequate" only when it (1) is sufficient as an enforcement tool to prevent fraudulent or misleading claims; (2) addresses the subject to the extent necessary to provide for good, sound nutrition in all of the area it purports to encompass; (3) uses up-to-date terminology and science to define foods and food descriptors, and at the same time meets the criteria in (1) above; and (4) omits no meaningful information which is addressed by a state or local law or regulation (AFDO, 1991).

AFDO also noted that even so-called industry protectionist requirements often provide valuable consumer protection, citing orange juice regulation by the State of Florida. AFDO believes that Florida officials have more experience than officials from other States in dealing with misbranding of fruit juices and, therefore the State requirements are beneficial both to consumers as well as industry (AFDO, 1991).

The Attorneys General of seven States (California, Iowa, Minnesota, Missouri, New York, Texas, and Wisconsin) also provided a definition of adequacy for the Committee's consideration:

The standard for making that determination [of adequate implementation] should be whether the federal regulations in the subject areas of the study are at least as protective of the public's well-being as existing state law or regulations. Where a state's laws are more protective, we urge the Committee to conclude that the federal regulations do not adequately implement those provisions of the FDCA and that protections at least as stringent as those provided by state laws or regulations should be adopted by the FDA through rulemaking. Any other result would be to strip consumers of their current level of protection and would run contrary to the intent of the legislators who drafted the NLEA (State Attorneys General, 1991).

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