Inventing the Label

Welcome back to Food Jungle’s interview and analysis corner. Today, I wanted to share with you a very interesting conversation I had with Peter Hutt, chief counsel of the Food and Drug Administration (“FDA”) from 1971 to 1975 and father of the nutrition label.

Here we chat about the dairy industry, nutrition labelling, fast food and more. And Peter has assured me that if YOU have any questions for him, don’t hesitate to ask. Let’s dig in.

It is an absolute pleasure to have you here with me, Peter. Let’s get straight into it. How did you get into the food industry and what made you join the FDA?

Like almost everything in my life, it was totally unplanned. While I was at Yale, every paper I wrote related to the dairy industry because my father had a retail dairy and I worked every summer doing a milk route.

Fast forward a few years, I went off to Harvard Law School and I wrote my senior thesis on Federal milk marketing orders. So, I was always dealing with the food industry. It’s what I grew up with.

There was a little break, though – before joining the FDA and after law school – where you went into private practice corporate law?

Yes. I went to Covington and Burling (a law firm in Washington, D.C.) where I became a partner. And then, quite unexpectedly, on a Monday morning, I get a call where I am asked to be chief counsel for the FDA.

So, I guess, the moral of the story is not to spend a minute of your time planning your career (ha!).

I wonder what your first day at the FDA looked like.

I can tell you exactly how it went. I was sworn in that morning and at two in the afternoon, I met with the commissioner of the FDA. I had not met him before.  

So, we sit down at two o’clock in the afternoon and the first thing he says to me is something like, “I don’t know a damn thing about FDA regulation. You [Peter] have done nothing for 13 years but practice food and drug law, so we’re going to divide up responsibilities. I, as the commissioner of the FDA, will be the face for the public. I know the people in the White House. I know the people in Congress. I’ll take care of all that and you’ll be in charge of figuring out what we want to do and how we’re going to do it. The whole regulatory programme is up to you, Peter”.

You were incredibly influential in creating nutrition labelling in the United States. How did you manage to get that done even though the FDA has very little rule-making power?

When it comes to nutrition labelling, rule-making is only half the issue. When you have rule-making power, you can only issue regulations that implement an existing statutory provision. You can’t just sit there and make new rules up.

So, I had to find a provision in the statute that I could interpret. Luckily, I had 13 years of private practice experience. I found a provision, which said something along the lines of “failure to reveal material facts can be as misleading as outright falsehood”.

And I wrote a regulation, saying that if anybody incorporates a nutrient into a food or makes a nutrient claim, the failure to have nutrition labelling will be misleading and, therefore, unlawful. By doing that, I was able to put nutrition labels on half of the food supply [in the United States].

And this was between 1971 and 1975?

Exactly.

To do nutrition labelling we issued 11 regulations, even one specific to the font size of the text. Really, it was only through being in private practice that I understood that labels should be in sufficiently large type so that it would be read and understood by consumers under normal conditions of purchase and use.

Thanks to my experience, it took me around 5 minutes to figure that out. Nobody in the FDA had ever done that.

Moving on to today, have you seen the FDA change significantly since you were there?

It is much bigger. We had about 4,500 employees and a budget of about $75 million. Now the FDA has over 18,000 employees and a budget of around $4 billion.

We also didn’t have some of the more sophisticated issues that exist today. All the scientific discoveries have been compounded over the years.

How do you think the FDA has handled those modern food issues? For example, how do you think the FDA has reacted to the bird flu outbreak that is getting worse in the US?

Well, they have to face an issue that I never had to face. Raw milk has always been an issue. But when you have bird flu in cows, raw milk becomes an even larger problem because you have no idea what’s going to happen.

But let me tell you this. I bet they’re doing everything they can to get tests done to figure out what the likely solution is. The question is, should we ban raw milk, since we know that pasteurisation definitely kills bird flu?

Is this what the FDA should do?

If it was discovered that raw milk did carry the bird flu virus, the states and the FDA would have to require pasteurisation.

Are you worried that too many of these cases will result in a fatal transmission to humans?

There is no sense in worrying about it until we have more information. I have never been a fan of worrying about things that are still hypothetical. Until they have all the facts, the FDA will not take action.

If they find that the virus did not survive pasteurisation, they’ll say that pasteurised milk is safe to drink.

I’d love to pick your brain on nutrition labelling, which is obviously your specialty. There’s a popular idea circling around potentially moving nutrition labels to the front of food packaging. Do you think this is useful? How do you think that would affect consumer choices?

The whole idea behind nutrition labelling was to have ONE place where the consumer would be able to find information that would give the nutritional quality of THE food.

I argued with my nutritionist that there was one piece of information that was more important than anything else: calories. I said that we should put calories on the front and then everything else on the back.

But then he told me that if you put the information in the front, no one is going to read the rest of the information on the back. So, I lost that battle.

Especially now since sugar is the ultimate evil and not calories.

Every once in a while, they change the ultimate evil ingredient. But would I object if they put more labels on the front display of food packaging? Not really.

My wife, who has a PhD in nutrition, says that blaming anything on salt is absurd. She’s one of those people who eats salt all day long and she points out that it doesn’t do anything bad to her. Other people, though, do have a different metabolism, so it affects them differently. But she just ignores all the salt information.

Do you think we’ll get to the point where the nutrition label you see on the back is moved to the front?

Oh that’s never going to happen. It’s just impractical. If you put it on the front, you would have to get rid of the net quantity of contents and the statement of identity to find enough space on many products.

Would you say that’s a necessary step to take, given the health crisis we’re experiencing in the West?

No, not at all. If you put the label on the front, the front will become the back.

I don’t read nutrition labels because I’m a very light eater. So, I regulate my calories by the way that I eat [and not by reading the nutrition label]. I weigh the same today as I did 50 years ago.

And from what I understand, you’re an avid fan of vanilla ice cream and the burger chain, Five Guys.

Yes, I am.

But I think one of the greatest frauds that have ever been perpetrated on the eating public is that guy who went to fast food stores and ate two or three times what any rational human being would eat and then didn’t feel good.

If he had gone to the most nutritious restaurant in the world and eaten the way he had eaten, he would have had the same result.

Are you referring to the film “Supersize Me”?

Yeah. It’s just pure fraud.

I feel like the premise of the film was “can you survive on a diet like that”, which you can’t.

Of course you can’t, if you’re going to eat twice as much as any rational person would. It’s fraud, hoodwinking the public by making fast food look dangerous.

But it’s not in the slightest bit dangerous. You walk into a food company and they have inspectors that are very careful in making sure that the food is safe.

Do you believe that all commercial food production goes through a rigorous investigative process?

If you’re talking about investigating commercial feeding, the truth is we just don’t have that kind of control in the United States. You can do whatever you want to do as long you do not hurt other people, which you could argue is wrong.

You could argue that we shouldn’t be eating as much meat, too. But we’re not going to resolve that discussion today.

But you would say that fast food is perfectly healthy?

The meat is cooked and it’s safe. When I go to Five Guys, I’m not worried.

Let’s take McDonald’s. I would cheerfully eat McDonald’s for a year and it wouldn’t bother me in the slightest. It wouldn’t change my weight because I would eat it in a sensible way.

There was even a famous guy who did do that. He only ate McDonald’s and he maintained his weight and his health.

I would agree that there are some people who can eat this food and not feel the effects.

That assumes there are effects to be felt. There aren’t any.

There are no effects of eating fast food regularly?

No. None that I’m aware of. I have never seen a scientific study that has shown this.

I have never read a controlled study where someone ate hamburgers from McDonald’s and compared them with some high-end restaurant that also makes hamburgers.

Do you believe there is total transparency within the US food industry, then?

Yes. There is more today than ever before! Especially because of the internet. People put a lot of information on their websites that you wouldn’t see on the nutrition label.

Companies used to hide everything and then they discovered that they would get bombarded with disappointed consumers who can’t learn anything and who could go elsewhere. If they don’t give the information, they go downhill.

Do you think it is appropriate for ex-members of the FDA to sit on the boards of private food companies?

Absolutely yes. In fact, I think it’s critical because you want them to bring their perspective to the board. Similarly, I think it ought to be a requirement, if you can do it, for people from the industry to come to the FDA the way I did.

Why was I successful in all these regulatory approaches? Because I knew the industry and I knew how the industry worked. I knew what regulation made sense and what regulation didn’t make sense.

How about having members of the FDA simultaneously working for private food companies?

No, I don’t think that would ever be acceptable. That’s a bridge too far.

I’ll just finish with this. When I came to the FDA, the prevailing view was that the FDA should have “command and control” type regulation. My response to that was “absolutely not”. We, at the FDA, should not tell what consumers should have to eat. We are not a national nanny. Our job should simply be to guarantee safety and transparency.

Well, this was enlightening, Peter. Thank you so much for sparing a minute to talk to a curious student.

Thank you for having me!