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Unpublished Paper
A Healthy Diet of Preemption: The Power of the FDA and the Battle Over Restricting High Fructose Corn Syrup From Food and Beverages Labeled ‘Natural’
ExpressO (2009)
  • Adam C. Schlosser, University of Miami School of Law
Abstract
Americans today are facing a health crisis. These same Americans are increasingly trying to improve their well-being by purchasing healthy food and beverages and are flocking towards the supposed health benefits of those foods and beverages labeled ‘natural.’ Due to the FDA’s liberal requirements, consumer confusion currently exists regarding what ingredients may be used in products labeled ‘natural.’ In fact, many ‘natural’ food and beverages are actually less healthy than their counterparts not featuring any specific labeling claims. High fructose corn syrup (HFCS) is produced by a complex scientific manufacturing process and is used as an ingredient in millions of foods and beverages, many labeled ‘natural.’ The use of HFCS is currently very controversial, with many scientists, nutritionists, and even politicians harping about HFCS’ alleged deleterious health effects, while HFCS manufacturers are pushing back by touting the safety and benefits of HFCS. Consumers have recently filed several suits attempting to use state tort law to answer the question of whether the use of HFCS is in accord with the FDA’s definition of a ‘natural’ product. This article explains why any lawsuit challenging the usage of HFCS in ‘natural’ food and beverages must be dismissed due to implied preemption or, alternatively, issues of primary jurisdiction. After establishing the FDA’s authority, this article also clearly demonstrates the reasons why the FDA must affirmatively exercise this power to create a firm regulation governing the usage of HFCS in ‘natural’ food and beverages. The FDA can realistically work within existing statutory mandates, balance consumer and manufacturer concerns, and still remain within current resource constraints by finding HFCS synthetic and thus not allowed in food and beverages wishing to use the labeling term ‘natural.’
Keywords
  • High Fructose Corn Syrup,
  • Natural Food and Beverage Label,
  • FDA Preemption
Disciplines
Publication Date
June 30, 2009
Citation Information
Adam C. Schlosser. "A Healthy Diet of Preemption: The Power of the FDA and the Battle Over Restricting High Fructose Corn Syrup From Food and Beverages Labeled ‘Natural’" ExpressO (2009)
Available at: http://works.bepress.com/adam_schlosser/3/