Annals of Health Law
HOW TO REGULATE TOXIC FOODS
for one’s health is virtually universal. 174 The same cannot currently be said
of sugar. Therefore, making the public as aware of the dangers of sugar as
they are of the dangers of smoking would be a worthwhile initiative.
In addition to educational initiatives, labeling and advertising restrictions
that apply to tobacco products should be embraced and applied to sugar.
This will help inform the public about the foods they are eating. Nutrition
labels detailing sugar and fat content, should be enhanced to include not just
the total number of grams of sugar per serving but also the number of grams
of added sugar per serving. Natural sugars, such as those from fruit, 175
usually contain fiber and are not unhealthy in the same way that added
sugars are. 176 Just as the nutritional facts break down saturated, unsaturated
and trans fats, they should also distinguish between the number of grams of
added sugars versus natural sugars and state the total grams of sugar per
serving. This will facilitate intelligent consumer decision-making.
Warning labels required on cigarette packages can be used as a model for
warning labels on foods with added sugars. The warnings should contain
current information about the risks associated with sugar consumption.
Instead of requiring warnings on every food product with added sugar,the
warning labels could be limited to products with, for example, more than
ten grams of added sugar per serving. 177 The warnings should be mandated
at the federal level, as they are under the Cigarette Labeling Act, so they
can be standardized throughout the country. 178 This will help educate the
public, and commercial speech considerations are more easily overcome for
warning labels, which disclose information,than they would be for
advertising restrictions. 179
In conjunction with improved nutrition labels and warnings, advertising
174. Second Hand Smoke, NEMOURS, http://kidshealth.org/teen/drug_alcohol/tobacco/
secondhand_smoke.html (last visited Jan. 8, 2013).
175. See Here’s the Thing, supra note 112.
176. Cf. STEWARD ET AL., SUGAR BUSTERS: CUT SUGAR TO TRIM FAT, 63-64 (1995).
177. Ten grams is being used as an example. The scientific evidence should dictate the
actual number. Most soft drinks have more than twenty grams of sugar, so this change
would require warnings on most soft drink containers.
178. See supra notes 125-26 and accompanying text.
179. Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 673 (1985) (explaining
that “[t]he courts have regularly held that mandating disclosure is a less burdensome
imposition on commercial speech than placing prohibitions on such speech.” Thus the court
rejected appellant’s contention that we should subject disclosure requirements to a strict
“least restrictive means” analysis.). But see R.J. Reynolds Tobacco Co. v. FDA, 2012 U.S.
Dist. LEXIS 26257 (2012) (striking down FDA regulations requiring the display of textual
warnings and graphic images that would cover the top fifty percent of every package of
cigarettes). Cf. Jonathan Mincer, Court Misapplies First Amendment to Strike Down FDA
Cigarette Warning Labels, REGBLOG (Mar. 3, 2012), http://www.law.upenn.edu/blogs/