When Barry Cutler was growing up in New Haven, Conn., his father, a peddler of kitchen appliances, used to traipse through the back rooms of every eatery for miles around. ‘My Dad would never – ever – order hamburger out,’ Cutler recalls. ‘He’d seen how it was prepared.’ Having left the Federal Trade Commission in April after three years as head of its Bureau of Consumer Protection, there are probably a few things Cutler could tell dear old Dad about meat grinders.
The Food and Drug Administration’s new health claims regulations for food product labels went into effect in May, so Cutler – now a lawyer in private practice with the Washington, D.C. firm of McCutcheon, Doyle – may have gotten out just in time. Food manufacturers are wondering what effect the new regs will have on their business, and the bureaucrats at the FTC are prepping to make sure they’ll be able to answer all their questions. The second phase of the regs, which deal with nutrient claims, will be in force this time next year, so everybody’s hustling. Some of the professional consumer advocates here may be scrambling more than anybody. After losing Round 1, they’re determined not to lose Round 2.
Round 1 was the fight over the Nutrition Labeling and Education Act of 1990, which directed the FDA to draw up the new regs. Originally, the Naderites wanted the same regs that apply to labels to apply to ads as well, which Congress rightly scuttled.
Round 2 is a dispute over whether the FTC should regulate advertising at all. Cutler thinks it should. Sharon Lindan, assistant director for legal affairs at the Center for Science in the Public Interest, thinks not. Arguing that the FTC is ‘out of step’ with the FDA and the U.S. Department of Agriculture, Lindan and her organization are backing Ohio Democrat Howard Metzenbaum’s Senate Bill 68, which transfers authority to oversee ads from the FTC to the FDA. Under the Metzenbaum bill, ads would look, sound and bore people to death the same as labels do.
What seems perfectly rational to the Naderites gives Cutler pause. ‘There should be different standards for ads and labels just as there are different roles for the two agencies,’ he says. ‘Under the FDA regs you can’t say that a product is ‘reduced fat’ or ‘reduced sodium’ unless the reduction in fat or sodium has reached the FDA-established threshold. But you should, in my opinion, be able to advertise that you’ve lowered the fat or sodium in your product, as long as the reduction is significant enough not to be misleading.’
Call it Cutler’s Law: ‘There’s no incentive to improve your product if you can’t tell people you’ve improved it.’ Just how much an advertiser can claim for its new, improved product is the rub. The new regulations apply a so-called scientific agreement test, which is far more stringent than the FTC’s ‘reasonable basis’ rule.
Still, there’s bound to be confusion, given the number of conflicting studies on record and the variety of claims made. ‘I get confused when I read the papers in the morning,’ Cutler admits. ‘Ever week I read about new research on caffeine, on retin-A, on Vitamin B, you name it.’
The question CSPI likes to ask is: Whom do we trust to sort out the claims? The white lab coats at the FDA or the economists and lawyers at the FTC? Cutler says the question is improperly framed. ‘That’s not a choice anybody has to make,’ he explains. ‘At the FTC we routinely relied on the expertise of the FDA scientists. We worked together as a matter of course, and there’s no war going on here. The dispute is between the FTC and its critics. Scientists are important. But lawyers and economists are important, too. The function of the FTC, after all, is to insure fair competition, and they are key to evaluating advertising’s role in competition.’
The FTC’s challenge in the months ahead, he says, is to make its rules for advertising as consistent as possible with the FDA’s labeling standards so that the consumer is not misled – and to allow the marketplace to function as well. He does not envy the man who takes his place. Christian White, the FTC’s ex-general counsel, became acting director when Cutler left, and White will have his hands full. ‘Even if the FDA and FTC are in complete agreement, they’re going to have problems until they can bring the states and local governments into some uniformity,’ Cutler notes.
In the meantime, he advises his successor to keep the faith. ‘Either you believe in advertising or you don’t,’ he says. ‘I always tried to remember that most of the people who were always carping at us don’t really believe in advertising. They don’t represent the mainstream of consumer organizations.’
Copyright Adweek L.P. (1993)

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