American Journal of Law & Medicine

Transparency for Food Consumers: Nutrition Labeling and Food Oppression


Transparency for consumers through nutrition labeling should be the last, not the first, step in a transformative food policy that would reduce dramatic health disparities and raise the United States to the health standards of other nations with similar resources. Nonetheless, transparency in the food system is a key focal point of efforts to improve health by providing consumers with necessary information to make good nutritional choices, as well as to achieve sustainable food chains and ensure food safety and quality. (1) In fact, nutrition labeling on packaging and in restaurants is the centerpiece of policy designed to decrease obesity, a condition many health advocates consider to be the most urgent public health crisis of the twenty-first century. (2) The resulting increased transparency about food ingredients has led to some changes in industry practices and allowed many middle- and upper-income consumers to make informed choices about the products they purchase and consume. Unfortunately, however, research reveals that increased nutritional information does not improve health.

Most consumers do not use nutrition labeling to ameliorate their food choices, and those who do are already in good health. Further, low-income consumers who must select foods based entirely on availability and affordability derive few, if any, benefits from transparency. This is because their choices reflect structural conditions, not lack of information. Instead, transparency primarily benefits health-conscious, wealthier constituents as well as food corporations, which incur minimal costs from labeling in comparison to the expense that other, more impactful reforms would impose.

To eliminate or decrease socioeconomic and racial health disparities, structural changes that expand access to healthy food, regulate harmful food ingredients, and create opportunities for more active lifestyles are necessary. Therefore, to the extent that it replaces more meaningful structural reform, transparency's primacy in food policy deepens the health divide between wealthy and poor individuals, and between whites and other racial groups. (3) The immediate goal of transparency in the food system should accordingly not be to provide consumers with information about food ingredients and processes, but to expose the partnerships between the food industry and the government that lead food policy to prioritize private profit over public health.

This paper begins by describing nutrition labeling requirements and the research on their effectiveness. It then explores the obstacles that prevent information provision from effecting positive change. It interrogates how alliances between the government and corporations lead to food oppression, which arises from facially neutral laws and policies that disproportionately harm socially subordinated groups, and examines how racial stereotypes and popular perspectives on health exacerbate these harms. It concludes by proposing new directions in food policy that would render transparency more useful for all consumers and reduce health disparities.


Americans consume one third of their calories and spend half of their food budgets on food prepared outside the home. (4) This practice of eating pre-packaged and restaurant food, particularly from fast food establishments, correlates with obesity and other indicators of poor health. (5) In an attempt to improve the health outcomes associated with eating food cooked outside the home, Congress enacted Section 4205 of the Patient Protection and Affordable Care Act. This provision requires chain restaurants to list the calorie content of their standard food and drink items on menus and menu boards, (6) thereby ensuring that restaurant patrons receive information about menu items that overlaps with what manufacturers must display on packaged food products. (7)

Food manufacturers, under the Nutrition Labeling and Education Act (NLEA), must include a label titled "Nutrition Facts," displaying the amount of calories, sugars, fat, saturated fat, vitamins A and C, calcium, iron, fiber, and carbohydrates contained in a packaged food product. (8) Manufacturers may also voluntarily post other nutritional content. (9) In 2014, the Food and Drug Administration (FDA) proposed amendments to the NLEA that would create a new line on the label for added sugars (previous labels did not distinguish between added and natural sugars, such as those that come from fruit); adjust the serving size to reflect realistic portions; and make the calorie count more visible. (10) Many food and health advocates view these amendments as an important victory for consumers. (11)

Research reveals, however, that nutrition labels and restaurant calorie counts have little or no impact on consumer choice and health. (12) Both teenagers and adults notice calorie counts when restaurants provide them, but neither group alters their food selection in response. (13) Similarly, behavioral economic strategies designed to encourage healthy selections by making certain products more accessible and prominent in lunchrooms or restaurants do not appear to reduce overall caloric consumption, and instead may, in some instances, increase it. (14) For example, one study demonstrated that consumers did, in fact, make healthier selections based on the addition of healthy items to a fast food restaurant menu. (15) Nonetheless, they then compensated for making a healthy choice, such as a sandwich instead of a burger, by adding an unhealthy item, such as fries or a milkshake, to their meal. (16) Ironically, the healthy selection served to assuage the consumer's guilt about unhealthy eating, opening the door to further unhealthy choices. Similarly, another study found that adding a healthy option, like a salad, to an otherwise unhealthy fast food menu increases selections of unhealthy products even when the consumer does not purchase and consume the salad. (17) Merely viewing the healthy option on the menu satisfies the eater's need for good health practices. (18)

Nutrition labels on packaged foods sold in stores also do not appear to improve health outcomes by reducing consumers' intake of calories, saturated fats, or sodium. (19) Instead, the evidence suggests that labeling only facilitates better choices for middle and high-income consumers, the Whole Foods shoppers who already engage in healthy eating habits. Consequently, the labels fail to result in an overall change in consumer health. (20) In addition to socioeconomic class, gender can determine the use and effect of labeling. Women are more likely than men to read nutrition labels (21) and, while women usually use nutritional information to attempt to lose weight, men often employ it to increase their caloric intake, or "bulk up." (22)

However, although nutrition label requirements appear to have only a minimal impact on consumer health and behavior, they do influence the conduct of manufacturers, who sometimes reformulate ingredients in anticipation of new rules to gain a competitive advantage. Several large food companies, for example, altered their products in reaction to trans fat labeling requirements (23) and the 2005 Dietary Guidelines' recommendations of a specific daily intake of whole grains. (24) Additionally, changes implemented in response to the guidelines' advice to eat foods lower in fat content significantly increased the market share of fat-modified cheese products and cookies. (25) Chain restaurants similarly reacted to labeling requirements by reducing the calories in many of their non-core menu items. (26) It is not clear, however, that these changes by manufacturers and restaurants result in better health outcomes for consumers, as more nutritious products may only appeal to already health-conscious consumers. (27) Moreover, in a phenomenon branded "the Snackwell's effect," some people binge on foods, such as low-fat Snackwell's cookies, in the mistaken belief that these foods are healthy due to their low-fat content. (28) In fact, the reverse is true, as these types of foods usually contain high amounts of sugar and chemicals that disrupt metabolism and engender other negative health consequences. (29) Increased production of foods labeled low-fat and, by implication, healthy, can therefore lead to poorer health outcomes.

Nutrition labels may similarly contribute to this type of consumer confusion because the information they present is difficult to decipher. (30) To improve consumers' comprehension, an FDA study recommends that, instead of dividing calories and other nutritional content into servings, labels should post the total number of calories that are in the package. (31) Even with this improvement, however, it is likely that consumers would not fully understand the significance of the numbers that appear on labels cross-listed with calories and other food components. Clearer labeling might, however, lead to significant changes. For example, David Kessler, the former commissioner of the FDA who designed and oversaw the implementation of the first nutrition label, proposes that instead of displaying the required information on the side of packaged foods, manufacturers should prominently feature the three top ingredients, the number of calories per serving, and the amount of additional ingredients on the front of packages. (32) Research demonstrates that this type of plain language can alter consumer behavior. For example, in one study, six Baltimore convenience stores posted large, brightly colored signs on refrigerators containing sweetened beverages that stated how long it would take to walk off the calories in each drink. (33) There was a corresponding drop from 98% of adolescent shoppers choosing sugary beverages to 89%. (34)

Similarly, a study conducted at Massachusetts General Hospital cafeteria labeled foods with red, yellow, and green symbols intended to evoke responses to food items ordinarily associated with traffic symbols. (35) Green (go) signified the healthiest options, including fruits and vegetables; yellow (proceed with caution) indicated a need for moderation in consuming those foods; and red (stop) signaled items containing little or no nutritional value. …

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