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Extending the NLEA timetable; Congressional action buys more time for food label changes.

ON MAY 19, 1994--eleven days after the regulations implementing the Nutrition Labeling and Education Act took effect--Congress extended the labeling deadline for most of the act's labeling provisions until Aug. 8, 1994. The extension ended months of uncertainty as it became apparent that many labels would not be ready by May 8 or that valuable inventory would have to be destroyed. Although the FDA had acknowledged informally that--at least in some cases-- additional time for compliance was justified, the agency refused to grant any case-by-case exceptions. Congress acted in the 11th hour in response to constituent pleas for help.

For many companies, the extension will provide critical relief. Unfortunately, for those that already had absorbed the costs of meeting the May 8 deadline, the unexpected congressional extension came too late.

The food industry had long expressed concern that the NLEA implementation timetable was unrealistic. Although this finally moved Congress to act, many of the costs imposed on business could have been minimized had Congress and the FDA more carefully managed the NLEA's implementation from the beginning.

Specifically, the extension amendment:

* Delayed application of the NLEA's nutrition labeling, nutrient content and percent juice labeling requirements until Aug. 8, 1994, for food products contained in packages bearing labels printed before May 8, 1994;

* Required a "person" using such labels to certify to the Secretary of Health and Human Services by June 15, 1994, that it will comply with the NLEA requirements after Aug. 8, 1994; and

* Made a special allowance for producers of juice or milk products to use "old" labels if printed before Aug. 8, 1994.

Several members of Congress insisted on the certification requirement to preclude companies from seeking additional extensions. The certification was to be submitted by anyone who introduces a food product--or delivers it for introduction--into interstate commerce. When a manufacturer has submitted a certification for a food product, the distributor and retailer that resell the food need not submit a separate certification to the FDA.

The legislative extension was prompted by several practical considerations. Packaging suppliers to the food industry had huge inventories of prelabeled, unfilled containers that the FDA clarified, just two months before the rules were to take effect, could not be used after May 8. In addition, many companies simply were unable to complete the necessary label changes, despite good faith efforts to do so. Manufacturers of private label products faced a particularly difficult challenge, given the large number of labels that had to be converted.

The FDA's continued modification of its final rules, including publication of "technical amendments" in August 1993, reasonably suspended label conversion efforts by companies that wanted to avoid making two sets of changes. Finally, even many companies that had new labels ready would have been forced to discard costly inventories that were not used prior to the original May 8 deadline.

The extension also proved beneficial to the FDA. The agency received many requests from companies to use "old" labels after May 8 because new labels for certain products were not ready. The FDA concluded that it lacked the legal authority to extend the NLEA's statutory deadline, leaving Congress as the only avenue for relief. And the FDA now has more time to plan for its expected aggressive enforcement of the new labeling requirements. The prospects for coordination and consistency among the FDA, its district offices and state regulators should improve given the additional three months available to the FDA.

The USDA also published a notice in the Federal Register that extends the applicability date for its nutrition labeling and related requirements from July 6 to Aug. 8, 1994. The NLEA does not cover meat and poultry products, but the USDA adopted comparable nutrition labeling rules to ensure consistency in labeling for all foods found at the supermarket. The USDA explained that its extension was intended to maintain harmonization with the FDA.

Even with the extension, some companies still may be unable to convert existing labels by Aug. 8. Each company will have to assess its options, which will depend largely on individual circumstances. Companies may petition the FDA for an interim or permanent exemption or modification to the mandatory nutrition labeling requirements. The FDA's regulations provide for such relief when "it is not technologically feasible, or circumstances make it impractical" for firms to comply. The FDA has granted several such requests and might broaden the scope of such exceptions, particularly when only interim relief is sought. Of course, the time extension will make specific cases for even more time harder to sell.

Putting this issue into perspective, the food industry took the May 8 deadline seriously and had remarkable success digesting the complicated rules and redesigning labels. The fact that so many products now on supermarket shelves already bear nutrition information in the new format is evidence of this. Nonetheless, when it became obvious that the May 8 deadline was unrealistic for some and needlessly costly for many others, the government could have been more responsive. Then, everyone would have benefited. Perhaps the lesson of the NLEA for Congress will be to establish realistic timetables in the first place for implementation of complex new laws by regulatory agencies and industry, to avoid later (and in many cases, too late) fixes.
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Title Annotation:Rule Watch; Nutrition Labeling and Education Act of 1990
Author:Kushner, Gary Jay; Steinborn, Steven B.
Publication:Food Processing
Article Type:Column
Date:Aug 1, 1994
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