Food Labelling Regulation to Promote Healthy Eating

Food Labelling Regulation to Promote Healthy Eating Barbara von Tigerstrom Chronic diseases are leading causes of death and disability in Canada and ...
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Food Labelling Regulation to Promote Healthy Eating Barbara von Tigerstrom

Chronic diseases are leading causes of death and disability in Canada and worldwide, and many of these diseases are associated with preventable risk factors.1 For example, a recent analysis found that a significant proportion of cancers – at least a quarter, and up to 40 per cent or more for some types – could be prevented through changes in diet and physical activity.2 Taking more effective preventive action is clearly an urgent public health priority. The World Health Organization (WHO) has called for global action to stave off the “impending disaster” of increased mortality and disability from these diseases.3 Even once we recognize the importance of preventive action, however, it can be difficult to know what steps to take. There are many different options and competing priorities. We want to implement measures that will be effective, but effectiveness can be difficult to predict. It is not always feasible to study public health interventions in the same way as other health interventions like new drugs, so looking for the same type or level of evidence can be problematic.4 These challenges are exacerbated in the case of chronic disease prevention.5 Chronic disease is often the result of a complex matrix of factors, interacting in ways that are sometimes unpredictable.6 If we insist on waiting for solid evidence that a preventive measure will be effective, this could mean deferring action indefinitely. Given the serious public health problems we face, such delays are not acceptable. We should not abandon our efforts to search for useful evidence, but should act on the best evidence that is currently available, while committing to monitor and adapt measures as needed.7 In choosing strategies, we can also consider factors such as the proportion of

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expected costs and benefits, feasibility, and whether measures have a plausible basis according to everyday experience and accepted theories of human behaviour.8

Food labelling The regulation of food labelling is one part of a public health strategy to promote healthy eating. Improving consumers’ access to accurate and reliable information about their food can enable healthier choices. This approach focuses on empowering consumers with information, rather than trying to dictate choices in a paternalistic way. However, consumers need to be able to trust information in order to act on it, and many consumers are sceptical of the claims on food labels.9 The government has a crucial role to play in ensuring that nutrition information is reliable and adequately accessible. Many jurisdictions around the world, including Canada’s most important trading partners, are actively engaged in reforming their food labelling legislation. They are moving to expand mandatory nutrition labelling to restaurants and to regulate front-of-package food labelling more effectively.

Menu labelling Restaurant foods are not currently required to carry nutrition information (unless a nutrient content claim is made, in which case the supporting information must be displayed).10 Legislation to require some nutrition information to be displayed in chain restaurants has been passed by a number of city, county, and state

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governments in the United States, and some of these laws have already been implemented.11 The new United States federal health reform legislation includes provisions mandating nutrition disclosure in restaurants with more than twenty outlets nationwide,12 and the Food and Drug Administration recently released the regulations that will put this requirement into effect.13 Most of the U.S. laws require calorie amounts to be posted on menus or menu boards, with other nutrition information available in each outlet as a poster or brochure. Surveys have consistently found high levels of public support for menu labelling.14 Studies show that without disclosure, people find it very difficult to estimate the nutritional content of restaurant food.15 Advocates suggest that menu labelling could help to enable consumers to make healthier choices, which is important considering the amount of restaurant (and take-out) food that is consumed by North American populations and the large portions of high-calorie food that are often served in restaurants.16 Some argue, however, that mandatory menu labelling is unnecessary because many restaurant chains already make some nutrition information available, usually on a web site and sometimes on pamphlets, posters, or packaging.17 These voluntary efforts are useful, but too limited to fully realize the benefits of more easily and consistently accessible information that could be achieved by mandatory regulations. We might also worry about the cost to businesses, especially at a time of economic difficulty. The cost involved will depend partly on how the regulations are designed, for example, what menu items are covered and what forms of analysis are acceptable. However, the cost does not appear to be unreasonably high,18 especially bearing in mind that the requirements would only be imposed on chains above a certain size. Furthermore, as the major chains operating in Canada also have outlets in the United States that would already be subject to mandatory labelling, the marginal costs of meeting similar requirements in Canada would be much lower. There are many questions to be addressed regarding the design of mandatory restaurant disclosure laws, e.g. what restaurants and what products are covered, but experiences in other countries, especially the United States, give us examples from which to learn. Some have questioned the value of requiring only calories to

be shown on the menu.19 However, most menu labelling laws also require information on a range of nutrients to be readily accessible in food outlets (though not on the menu). This should be mandatory, whether or not calories are also required to be printed on menus. The most difficult question is whether menu labelling will actually affect consumers’ buying and eating habits. Most experimental studies have found that providing calorie or other nutrition information does have an effect on individuals’ choices,20 although a few did not.21 Where researchers have studied the behaviour of

The most difficult question is whether menu labelling will actually affect consumers’ buying and eating habits. Most experimental studies have found that providing calorie or other nutrition information does have an effect on individuals’ choices, although a few did not.

individuals in response to calorie labelling in restaurants or cafeterias, the results have also been mixed. Most studies conducted in the 1990s found no significant effect.22 Among more recent studies, a majority have found significant, though modest, effects on purchases,23 while others have found no, inconsistent, or small but not statistically significant effects.24 Research can help to explain why labelling appears to influence behaviour in some instances and not others. For example, not surprisingly, individuals who are trying to lose weight are more likely to be influenced by calorie information.25 A number of studies have found gender differences in the effect of menu labelling.26 Others have found that calorie information is more likely to have an impact on consumption when the calorie amount is higher than expected (regardless of the actual amount).27 This may help to explain why calorie information does not influence choices in some cases, because if people are expecting calorie amounts to be high, it is less likely that the information will affect their decisions. However, it could still influence choices

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in other cases. Furthermore, some research suggests that even when calorie information does not affect a particular product selection, it can influence future purchase intentions as well as the consumption of other food items on the same day.28 Arguably either the federal or provincial governments could legislate on this issue, and bills have been introduced in both levels of government.29 Federal government leadership would be desirable, either

Several studies have raised concerns about front-of-package claims on food products – especially children’s foods – that many would consider unhealthy due to their high sugar, sodium, or fat content.

through the enactment of federal legislation, or at a minimum, by helping to support and coordinate provincial efforts. Most food service chains that would fall within the scope of typical menu labelling laws are likely to operate in more than one province, and consistent standards across the country would make compliance much easier. In the United States, representatives of the food industry supported federal legislation that would create consistent national standards. 30

Front-of-package labelling The Food and Drugs Act prohibits food labels or advertisements that are false, misleading, deceptive, or “likely to create an erroneous impression regarding its character, value, quantity, composition, merit or safety,”31 and requires food labels to comply with the regulations.32 Federal and provincial consumer protection legislation also prohibits misleading labelling or advertising. The Food and Drug Regulations require nutrition information on most pre-packaged foods and regulate the use of health claims (e.g. “A healthy diet rich in a variety of vegetables and fruit may help reduce the risk of some types of cancer”) and nutrient content claims (e.g. “low fat”).33

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Labels with information about the health or nutritional characteristics of a food on the front or principal display surface of a package (front-of-package labels) can be useful because they are more easily seen by consumers. They are usually simpler than the full nutrition facts panels, so they may be more helpful to consumers who have limited time to make choices when they are shopping.34 Front-of-package labels can take many different forms. There are two main types: “nutrientspecific” systems, which contain information about the amounts of nutrients contained in the food, using numbers and/or logos, with or without descriptions (e.g. “low” or “high” amounts of a nutrient), and “summary” systems which give an overall summary or assessment of the nutrient content of the food (e.g. “healthy choice” logos).35 Many different types of front-of-package labels are currently in use in Canada, including the Heart and Stroke Foundation’s Health Check program and a variety of labelling schemes used by different companies. These schemes have different label formats or logos and use different criteria. Sometimes the criteria used are publicly available and sometimes they are not. The coexistence of many different label formats is confusing for consumers.36 Another concern is that some labels may be misleading or may encourage consumers to make choices that are not actually healthy. Several studies have raised concerns about front-of-package claims on food products – especially children’s foods – that many would consider unhealthy due to their high sugar, sodium, or fat content.37 An industry program in the United States called “Smart Choices” was criticized because some products carrying the “Smart Choices” label were high in sugar or fat, and the program was withdrawn after legal action was threatened and the Food and Drug Administration warned it would take enforcement action against misleading front-of-package labels.38 In the United Kingdom, the Advertising Standards Authority has recently ruled that it is misleading to advertise a product as “nutritious” when a typical serving contains 23 g of sugar (about one quarter of the guideline daily amount).39 A lawsuit in the United States has targeted the same product’s labelling as deceptive and contrary to U.S. regulations.40 As already mentioned, Canadian laws prohibit false, misleading, or deceptive labelling. Therefore, one way

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to improve the current situation could be devoting more resources and attention to enforcing our existing laws. Inspections and enforcement actions have recently taken place in both Canada and the United States,41 and further action has been called for.42 Enforcement against misleading labelling is clearly important, and the responsible agencies must have sufficient resources to carry out inspections, monitoring, and enforcement activities. However, it can be difficult to determine whether a label is misleading when it is to some extent a matter of degree whether a food is “healthy” or “nutritious.” Greater clarity would be helpful both for consumers and for industry. Another way to address this problem is to set minimum nutritional criteria that a food product must meet before it can be labelled with health or nutrient content claims or with any label suggesting it is a healthy choice. This approach is sometimes called “nutrient profiling.” Canada’s current regulations contain some conditions for the use of claims but they are quite limited. With nutrient profiling, the minimum criteria would consider the overall nutritional profile of the food, not just the nutrient that is mentioned in a claim. For example, if the label says “low sodium,” the product would not only have to meet the conditions for the level of sodium, but also minimum criteria for other nutrients such as fat and sugar. If it does not meet the criteria, it cannot be labelled with a claim unless the label also shows a disclosure statement alerting consumers to the less desirable characteristic. The equivalent regulations in the United States contain these criteria and could be used as an example.43 This approach would also be consistent with international recommendations and developments in the European Union and Australia. Health Canada indicated in 2009 that it would articulate a proposal for such criteria,44 and this would be a welcome development. In addition, a standardized front-of-package label would provide consumers with consistent information that is easier to access and understand. A 2007 report of the Parliamentary Standing Committee on Health, Healthy Weights for Healthy Kids, recommended the introduction of mandatory front-of-package nutrition labels as a way of making nutrition information more accessible and less confusing.45 The United States Food and Drug Administration is currently engaged in a research and consultation process with a view to developing consistent, science-based criteria and a standardized

format for front-of-package labels.46 Initially this is envisioned as a voluntary scheme, although mandating its use by regulation has not been ruled out if a voluntary approach is not effective.47 This is similar to the approach taken in the United Kingdom, where the “traffic light” colour-coded front-of-package labels were developed as an officially sanctioned but voluntary scheme. A voluntary but official, government-designed scheme would ensure that consumers could rely on the scheme’s

A voluntary but official, government-designed scheme would ensure that consumers could rely on the scheme’s criteria being valid and transparent, which would address one concern with the current proliferation of private schemes.

criteria being valid and transparent, which would address one concern with the current proliferation of private schemes. It would bring a greater degree of consistency and reduce confusion, but as long as the official scheme is voluntary, it is likely that different approaches will continue to be used (as in the U.K.). The next step would be to make the official scheme voluntary but exclusive; that is, food companies are not required to use front-ofpackage labels but if they do, they must use the official criteria and format. This would be similar to the wellestablished “Green Keyhole” scheme in Sweden (now also in use in Norway and Denmark). This would give a greater degree of consistency, although the labels might be used selectively. The most prescriptive option is to have a mandatory, official front-of-package label that must be used on designated food products, similar to the mandatory nutrition facts panels on packaged foods at present. This would provide the greatest degree of consistency and transparency.48 Any of these options could be used together with the recommendations outlined above to tighten and better enforce regulations on the use of health and nutrient content claims. There has been great debate over the most useful format of front-of-package label. Each type of format

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has strengths and weaknesses,49 and many factors need to be considered.50 Generally, industry has preferred positive summary formats, which label certain products as healthy choices, or objective nutrient-specific formats, which simply show amounts for a limited number of nutrients. For example, many companies have some kind of “healthy choice” logo or label format. The new front-of-package format launched in early 2011 by the Grocery Manufacturers Association in the United States includes information for calories, three “nutrients to limit” (saturated fat, sodium, and sugar), and up to two “nutrients to encourage” (potassium, fibre, vitamin A, vitamin C, vitamin D, calcium, iron, and protein).51

There is little evidence on whether front-of-package labels actually influence consumers’ purchasing behaviour, and it is inconclusive.59 These studies may not fully capture the potential effects of labelling schemes, because these schemes can also influence food producers to reformulate products to make them healthier. In addition, any scheme will be more effective if it is implemented along with education and public awareness initiatives. Canada could use the results of the Institute of Medicine study and other research to select a national front-of-package labelling scheme and promote it with a national media campaign to educate the public.

Conclusion There is little evidence on whether front-of-package labels actually influence consumers’ purchasing behaviour. These studies may not fully capture the potential effects of labelling schemes, because these schemes can also influence food producers to reformulate products to make them healthier.

However, the recent Institute of Medicine report, after a comprehensive analysis, recommended that only calorie, saturated fat, trans fat, and sodium amounts should be included in a front-of-package label,52 and “nutrients to encourage” such as protein, fibre, or vitamins and minerals should not be included, either because there is no public health rationale for encouraging greater consumption in the American population (e.g. for protein53) or due to concerns about inappropriate fortification.54 Furthermore, several studies have shown that a “traffic-light” format, which shows the amounts of key nutrients but also evaluates them as “high” (red), “medium” (amber), or “low” (green) is more effective.55 This view is not unanimous, however.56 Another recent study showed that all of the label formats tested were well understood; the authors therefore suggested that the choice of format is not as important as rates of use, which are determined by interest in healthy eating.57 The second phase of the Institute of Medicine study will examine the effectiveness of different formats, and is expected to be complete by the fall of 2011.58

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A variety of factors have held back legislative action in Canada that could help to promote healthier eating, including the evidence issues discussed above as well as political feasibility and debates about the role of government.60 The historic United Nations “High-level Meeting on noncommunicable disease prevention and control” being held in September 201161 provides a timely opportunity to reassess our efforts on this issue. As a country fortunate to have the capacity to adopt and implement preventive measures,62 Canada should answer the call to put in place a strong chronic disease prevention strategy. This strategy should include, among other measures, progress on better regulating food labelling. First, we should move forward, either through federal legislation or federal/provincial/territorial cooperation, with initiatives to mandate that nutrition information be readily accessible in chain restaurants. This would include, at a minimum, requiring nutrition information to be readily accessible in each outlet , and we should also consider requiring calorie information on menus and menu boards. Second, the federal government must ensure that the Canadian Food Inspection Agency and Health Canada have sufficient resources to enable better monitoring and enforcement of existing labelling regulations. Third, amendments to federal legislation should introduce minimum criteria that must be met by any food product carrying health claims, nutrient content claims, or any label suggesting it is a “healthy” choice. Finally, we should develop national criteria and format for front-of-package labels, and consider making them exclusive and/or mandatory if adequate consistency is not achieved within defined timelines. The

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national scheme should be supported with a prominent education campaign to increase awareness. 6 It goes without saying that these measures alone will not bring about the meaningful reductions in chronic disease that are urgently needed, but they could be part of a comprehensive strategy to work toward this goal. 7 Barbara von Tigerstrom, Associate Professor, College of Law, University of Saskatchewan, Saskatoon. This article is adapted from a Brief submitted at the invitation of the House of Commons Standing Committee on Health in February 2011.

Endnotes 1 World Health Organization, Global status report on noncommunicable diseases 2010 (Geneva: World Health Organization, 2011), online: WHO at 16. 2 World Cancer Research Fund / American Institute for Cancer Research, Policy and Action for Cancer Prevention – Food, Nutrition, and Physical Activity: a Global Perspective (Washington, DC: American Institute for Cancer Research, 2009). 3 World Health Organization, News Release, “New WHO report: deaths from noncommunicable diseases on the rise, with the developing world hit hardest” (27 April 2011), online: WHO . 4 See e.g. Mervyn Susser, “The Tribulations of Trials – Interventions in Communities” (1995) 85 American Journal of Public Health 156; Lawrence W Green, “Public Health Asks of Systems Science: To Advance Our Evidence-Based Practice, Can You Help Us Get More Practice-Based Evidence?” (2006) 96 American Journal of Public Health 406; L Rychetnik et al, “Criteria for Evaluating Evidence on Public Health Interventions” (2002) 56 Journal of Epidemiology & Community Health 119; Ross C Brownson, Jamie F Chriqui & Katherine A Stamatakis, “Understanding Evidence-Based Public Health Policy” (2009) 99 American Journal of Public Health 1576. 5 See Barbara von Tigerstrom, “Law and Policy Interventions to Prevent Chronic Disease: The Challenges of Evidence-Based Public Health” in R Kouri and C Régis, eds, Les grands défis en droit et politiques de la santé / Grand Challenges in Health Law

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and Policy (Cowansville, Quebec: Editions Yvon Blais, 2010) at 323. Alan Shiell, Penelope Hawe & Lisa Gold, “Complex Interventions or Complex Systems? Implications for Health Economic Evaluation” (2008) 336 Brit Med J 1281; Ross A Hammond, “Complex Systems Modeling for Obesity Research” (2009) 6 Preventing Chronic Disease 1. Jeffrey P Koplan, Catharyn T Liverman & Vivica I Kraak, eds, Institute of Medicine Committee on Prevention of Obesity in Children and Youth, Preventing Childhood Obesity: Health in the Balance (Washington, DC: National Academies Press, 2005); Government Office for Science (UK), Foresight – Tackling Obesities: Future Choices, Project Report (2007), online: Government Office for Science . David S Ludwig & Kelly D Brownell, “Public Health Action Amid Scientific Uncertainty: The Case of Restaurant Calorie Labeling Regulations” (2009) 302 Journal of the American Medical Association 434; B Swinburn, T Gill & S Kumanyika, “Obesity Prevention: A Proposed Framework for Translating Evidence into Action” (2005) 6 Obesity Reviews 23. Ipsos, Press Release, “Only a Slim Majority (53%) of Canadians Believe Health Claims Made on Food Product Labels” (18 January 2011) online: Ipsos ; Gill Cowburn & Lynn Stockley, “Consumer Understanding and Use of Nutrition Labelling: A Systematic Review” (2005) 8 Public Health Nutrition 21 at 24; Ann D Sullivan, “Determining How Low-Income Food Shoppers Perceive, Understand, and Use Food Labels” (2003) 64 Canadian Journal of Dietetic Practice and Research 25 at 26-27; Food Standards Agency, Concept Testing of Alternative Labelling of Healthy / Less Healthy Foods (Research Report), online: Food Standards Agency at 23-24. Food and Drug Regulations, CRC, c 870, s B.01.503(1) (c). Barbara von Tigerstrom, “Mandatory nutrition disclosure for restaurants: Is menu labelling coming to Canada?” (2010) 28 Windsor Rev Legal Soc Issues 139. Patient Protection and Affordable Care Act, HR 3590, s 4205. United States Department of Health and Human Services, Food and Drug Administration, Proposed Rules, “Food Labeling; Nutrition Labeling of

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Standard Menu Items in Restaurants and Similar Retail Food Establishments” (2011) 76 Federal Register 19191. Sarah E Colby et al, “Consumer Attitudes and Practices with Nutrition Labeling in Grocery Stores and on Menus” (Poster Abstract, 2009) 41(4S) Journal of Nutrition Education and Behavior S45; Rudd Center for Food Policy & Obesity, Menu Labeling in Chain Restaurants: Opportunities for Public Policy (New Haven, CT: Rudd Center for Food Policy & Obesity, 2008), online: Yale Rudd Center at 5. Scot Burton et al, “Attacking the Obesity Epidemic: The Potential Health Benefits of Providing Nutrition Information in Restaurants” (2006) 96 American Journal of Public Health 1669; Center for Science in the Public Interest (CSPI), Anyone’s Guess: The Need for Nutrition Labeling at Fast-Food and Other Chain Restaurants (Washington, DC: Center for Science in the Public Interest, 2003), online: CSPI at 13. Mary T Bassett et al, “Purchasing Behavior and Calorie Information at Fast-Food Chains in New York City, 2007” (2008) 98 American Journal of Public Health 1457 at 1458; AM Prentice & SA Jebb, “Fast Foods, Energy Density and Obesity: A Possible Mechanistic Link” (2003) 4 Obesity Reviews 187 at 190-91; James K Binkley, “Calorie and Gram Differences between Meals at Fast Food and Table Service Restaurants” (2008) 30 Review of Agricultural Economics 750 at 753, 757; Shanthy A Bowman & Bryan T Vinyard, “Fast Food Consumption of U.S. Adults: Impact on Energy and Nutrient Intakes and Overweight Status” (2004) 23 Journal of the American College of Nutrition 163 at 166-67; Tamara Dumanovsky et al, “What People Buy from Fast-Food Restaurants: Caloric Content and Menu Item Selection, New York City 2007” (2009) 17 Obesity 1369. Canadian Restaurant and Foodservices Association, “CRFA’s Nutrition Information Program”, online: CRFA . Several recent estimates suggest costs of approximately $150-220 per menu item for nutritional analysis: Canadian Restaurant and Foodservices Association, Nutrition Information for Foods Sold in Restaurants and Foodservice Establishments: A User’s Guide to Implementing the CRFA Voluntary Guidelines for Providing Nutrition Information to Consumers (2007), online: CRFA at 5; Margo G Wootan & Melissa Osborn, “Availability of Nutrition Information from Chain Restaurants in the United States” (2006) 30 American Journal of Preventative Medicine 266 at 267. See Larry Pynn, “Lack of BC Food Labelling Laws Leaves Restaurant Diners in Peril”, The Vancouver Sun (2 January 2010) online: The Vancouver Sun (quoting vice-president of the Canadian Restaurant and Foodservices Association). Scot Burton & Elizabeth H Creyer, “What Consumers Don’t Know Can Hurt Them: Consumer Evaluations and Risk Perceptions of Restaurant Menu Items” (2004) 38 Journal of Consumer Affairs 121; Julienne A Yamamoto et al, “Adolescent Fast Food and Restaurant Ordering Behavior With and Without Calorie and Fat Content Menu Information” (2005) 37 Journal of Adolescent Health 397; Mary A Gerend, “Does Calorie Information Promote Lower Calorie Fast Food Choices Among College Students?” (2009) 44 Journal of Adolescent Health 84; Christina A Roberto et al, “Evaluating the Impact of Menu Labeling on Food Choices” (2010) 100 American Journal of Public Health 312. TVE Kral, LS Roe & BJ Rolls, “Does Nutrition Information About the Energy Density of Meals Affect Food Intake in Normal-Weight Women” (2002) 39 Appetite 137; Lisa J Harnack et al, “Effects of Calorie Labeling and Value Size Pricing on Fast Food Meal Choices: Results from an Experimental Trial” (2008) 5 The International Journal of Behavioural Nutrition and Physical Activity 63. Barbara A Almanza et al, “Consumer Responses to Nutrition Guidelines Labeling in a University Restaurant” (1993) 93 Journal of the American Dietetic Association 580; Zoe Smith, “Evaluation of a Point-of-choice Menu Labelling Scheme” (1995) 24 Appetite 285; K Stubenitsky et al, “The Influence of Recipe Modification and Nutritional Information on Restaurant Food Acceptance and Macronutrient Intake” (1999) 3 Public Health Nutrition 201. Bassett et al, supra note 16; Y Chu & GL Kaye, “The Impact of a Simplified Nutrition Label on Food Choices of College Students at Point of Selection” (2007) 107:8 (Supp. 1) Journal of the American Dietetic Association A93; Yong H Chu et al, “Improving Patrons’ Meal Selections Through the Use of Point-of-Selection Nutrition Labels”

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(2009) 99 American Journal of Public Health 2001; Bryan Bollinger, Phillip Leslie & Alan Sorensen, “Calorie Posting in Chain Restaurants” (January 2010) online: Stanford University ; Pooja S Tandon et al, “Nutrition Menu Labeling May Lead to Lower-Calorie Restaurant Meal Choices for Children” (2010) 125 Pediatrics 244. Brian Elbel et al, “Calorie Labeling and Food Choices: A First Look at the Effects on Low-Income People in New York City” (2009) 28 Health Affairs 1110; Marjorie R Freedman & Rachel Connors, “Point-of Purchase Nutrition Information Influences FoodPurchasing Behaviors of College Students: A Pilot Study” (2010) 110 Journal of the American Dietetic Association 1222; Ellis L Vyth et al, “Influence of Placement of a Nutrition Logo on Cafeteria Menu Items on Lunchtime Food Choices at Dutch Work Sites” (2011) 111 Journal of the American Dietetic Association 131; Eric A Finkelstein et al, “Mandatory Menu Labeling in One Fast-Food Chain in King County, Washington” (2011) 40 American Journal of Preventive Medicine 122; Julie S Downs, George Loewenstein & Jessica Wisdom, “Strategies for Promoting Healthier Food Choices” (2009) 99 American Economic Review 159. Downs, Loewenstein & Wisdom, ibid. Jacqueline I Aaron, Rhian E Evans & David J Mela, “Paradoxical Effect of a Nutrition Labelling Scheme in a Student Cafeteria” (1995) 15 Nutrition Research 1251; Martha T Conklin, David A Cranage & Carolyn U Lambert, “College Students’ Use of Point of Selection Nutrition Information” (2005) 20 Topics in Clinical Nutrition 97; Y Chu & GL Kaye, supra note 23; Gerend, supra note 20. Burton et al, supra note 15; Elizabeth A Howlett et al, “Coming to a Restaurant Near You? Potential Consumer Responses to Nutrition Information Disclosure on Menus” (2009) 36 Journal of Consumer Research 494; Scot Burton, Elizabeth Howlett & Andrea Heintz Tangari, “Food for Thought: How Will the Nutrition Labeling of Quick Service Restaurant Menu Items Influence Consumers’ Product Evaluations, Purchase Intentions, and Choices?” (2009) 85 Journal of Retailing 258. Howlett et al, supra note 27; Roberto et al, supra note 20 (this study found an effect only where the total recommended daily calories were also displayed).

29 See von Tigerstrom, supra note 11. 30 National Restaurant Association, News Release, “National Restaurant Association Backs Bipartisan Senate Agreement to Empower Consumers Nationwide with More Nutrition Information” (10 June 2009) online: National Restaurant Association . 31 Food and Drugs Act, RSC 1985, c F-27, s 5(1). 32 Ibid, s 5(2). 33 Food and Drug Regulations, supra note 10. 34 Gerda IJ Feunekes et al, “Front-of-pack Nutrition Labelling: Testing Effectiveness of Different Nutrition Labelling Formats Front-of-pack in Four European Countries” (2008) 50 Appetite 57 at 58. 35 United States Food and Drug Administration, “Guidance for Industry: Letter Regarding Point of Purchase Food Labeling” (October 2009), online: United States Food and Drug Administration ; Institute of Medicine (IOM), Examination of Front-of-Package Nutrition Rating Systems and Symbols: Phase I Report (Washington, DC: National Academies Press, 2010) at 3-6. The IOM Report also uses a third, less common category: “food group information systems,” which use symbols to show ingredients or food groups (e.g. whole grains or fruits and vegetables). 36 Center for Science in the Public Interest, Food Labeling Chaos (2010), online: CSPI (this report is from a United States organization but the labels used in the Canadian marketplace are similar). 37 Sarah E Colby et al, “Nutrition Marketing on Food Labels” (2010) 42 Journal of Nutrition Education and Behavior 92; Juliet Sims et al, Claiming Health: Front-of-Package Labeling of Children’s Food (January 2011), online: Prevention Institute . 38 Marion Nestle & David S Ludwig, “Front-of-Package Food Labels: Public Health or Propaganda?” (2010) 303 Journal of the American Medical Association 771 at 771. 39 Advertising Standards Authority, “ASA Adjudication on Coca-Cola Great Britain” (27 April 2011), online: ASA . 40 Center for Science in the Public Interest, “Lawsuit Over Deceptive Vitaminwater Claims to Proceed” (23 July 2010), online: CSPI . 41 See e.g. United States Food and Drug Administration, “Understanding Front-of-Package Violat-

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ions: Why Warning Letters Are Sent to Industry” (March 2010), online: United States Food and Drug Association ; Sarah Schmidt, “Not So Low-Fat: Don’t Judge a Cookie by its Packaging, Food Agency Says after Testing”, The Vancouver Sun (3 September 2010) online: The Vancouver Sun . United States Government Accountability Office, “Food Labeling: FDA Needs to Reassess its Approach to Protecting Consumers from False or Misleading Claims” (January 2011), online: United States Government Accountability Office . 21 CFR §101.13(h)(1) (2006); 21 CFR §101.14(e) (2006); 21 CFR §101.65(d). Health Canada, “Health Canada’s Action Plan in Response to Stakeholder Feedback from Consultations on Modernizing Canada’s Framework for Health Claims on Food” (8 September 2009) at 8. Canada, Standing Committee on Health, Healthy Weights for Healthy Kids (Ottawa: Communication Canada – Publishing, 2007) at 22-23. United States Food and Drug Administration, “Front-of-pack and shelf tag nutrition symbols; Establishment of docket; Request for comments and information” (2010) 75 Federal Register 22602. United States Food and Drug Administration, “Guidance for Industry: Letter Regarding Point of Purchase Food Labeling” (October 2009), online: United States Food and Drug Administration . For further discussion of these policy options, see Barbara von Tigerstrom and Tristan Culham, “Food labelling for healthier eating: Is front-of-package labelling the answer?” (2009) 33 Man LJ 87. IOM, supra note 35 at 14, 72-77. Feunekes et al, supra note 34 at 69. Grocery Manufacturers Association, News Release, “Food and Beverage Industry Launches Nutrition Keys Front-of-Pack Nutrition Labeling Initiative to Inform Consumers and Combat Obesity” (24 January 2011) online: GMA . IOM, supra note 35 at 81. Ibid at 84. Ibid at 67, 77, 84. Synovate, “Quantitative Evaluation of Alternative Food Signposting Concepts: Report of Findings” (November 2005), online: Food Standards

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Agency ; Gary Jones & Miles Richardson, “An Objective Examination of Consumer Perception of Nutrition Information Based on Healthiness Ratings and Eye Movements” (2007) 10 Public Health Nutrition 238; Sally Malam et al, “Comprehension and Use of UK Nutrition Signpost Labelling Schemes” (May 2009), online: Food Standards Agency ; Bridget Kelly et al, “Consumer Testing of the Acceptability and Effectiveness of Front-ofpack Food Labelling Systems for the Australian Grocery Market” (2009) 24 Health Promotion International 120; Ingrid Borgmeier & Joachim Westenhoefer, “Impact of Different Food Label Formats on Healthiness Evaluation and Food Choice of Consumers: A Randomized-Controlled Study” (2009) 9 BMC Public Health 184. See e.g. Feunekes et al, supra note 34, in which the authors preferred a simple “tick” format, based on the results of their study. Klaus G Grunert, Josephine M Wills & Laura Fernandez-Celemin, “Nutrition Knowledge, and Use and Understanding of Nutrition Information on Food Labels Among Consumers in the UK” (2010) 55 Appetite 177 at 187. IOM, supra note 35 at 92. Compare: Kelvin Balcombe, Iain Fraser & Salvatore Di Falco, “Traffic Lights and Food Choice: A Choice Experiment Examining the Relationship Between Nutritional Food Labels and Price” (2010) 35 Food Policy 211; Gary Sacks, Mike Rayner & Boyd Swinburn, “Impact of Front-of-Pack ‘Traffic Light’ Nutrition Labelling on Consumer Food Purchases in the UK” (2009) 24 Health Promotion International 344. See Nola M Ries and Barbara von Tigerstrom, “Roadblocks to Laws for Healthy Eating and Activity” (2010) 182 Canadian Medical Association Journal 687; Nola M Ries and Barbara von Tigerstrom, “Legal Interventions to Address Obesity: Assessing the State of the Law in Canada” (2010) 43:2 UBC L Rev 361. Prevention and control of non-communicable diseases, GA Res 64/265, UNGAOR, UN DOC A/RES/64/265 (2010). World Health Organization, Global status report on noncommunicable diseases 2010, supra note 1, chapter 6.

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