U.S.
citizens benefit from the unimpeded interstate commerce
of consumer products. A national uniform label facilitates
broader consumer understanding by providing one simple,
easy to read label for purposes of comparison, and prevents
potential deception that could arise from various and conflicting
state requirements. If states create a patchwork quilt
of differing labeling laws, marketing bottled water across
state boundaries will become practically impossible and/or
expensive. A uniform national standard allows bottlers
to produce and apply the same label without regard to which
state the product may be sent.
The
promulgation of federal labeling laws and regulations has
sought a necessary balance between the government’s responsibility
to protect public health and provide consumer information
and the abilities of bottled water companies to efficiently
and cost effectively bring their products to market.
To
promote national uniformity of certain food labeling requirements,
Congress established preemption for numerous provisions
of the Federal Food, Drug, and Cosmetic Act (FFDCA) in the
Nutrition Labeling and Education Act (NLEA) of 1990. In doing so, Congress
recognized the disruptive impact that conflicting state
labeling laws could have on the interstate commerce of foods.
One of the goals of NLEA was to give industry the relief
from State requirements that interfere with their ability
to market products in all 50 states in an efficient and
cost effective manner.
Federal
standards of identity are among the Federal requirements
to which the FFDCA national uniformity provisions give preemptive
effect. Specifically, in section 403A(a)(1) of the act,
Congress provided in pertinent part that “no State or political
subdivision of a State may directly or indirectly establish
. . . or continue in effect as to any food in interstate
commerce . . . any requirement for a food which is the subject
of a standard of identity under section 401 that is not
identical to such standard of identity.”
Under
section 401, FDA is authorized to promulgate regulations
"establishing for any food, under its common or usual
name so far as practicable, a reasonable definition and
standard of identity." In addition to establishing compositional
requirements and the common or usual name that must be used
for labeling purposes, standards of identity may also require
specific information that must appear on the product label
to inform consumers of key product characteristics.
In
1995, FDA established standard of identity regulations for
bottled water. The standard of identity encompasses (1)
a general description of bottled water; (2) names that may
be used to identify bottled water products (e.g., “bottled
water,” “drinking water,” or alternative terms such as “purified
water” or “spring water”); and (3) FDA requirements for
“other label statements” specific to bottled water products. Among the requirements for “other label
statements” is a narrow source labeling provision, which
addresses the extent to which bottled water must bear source
labeling. The source labeling provision of the Federal
standard provides that bottled water from a community water
system must, unless expressly exempt, bear a label that
states “from a community water system” or “from a municipal
source,” as appropriate. Thus, the source-labeling requirement
imposed by the Federal standard is generic, not specific,
and applies only to water from a community water system.
State
laws that require additional water source information on
bottled water labels are preempted by Federal law. FDA
during the bottled water standards of identity rulemaking
considered requiring the water source on bottled water labels,
but rejected the issue as not a material fact because other
federal requirements provide the consumer with assurances
as to the safety, quality, and type of water source. In
addition, Federal law expressly preempts non-identical state
requirements for foods subject to federal food standards. In a September 3, 2003, letter to Maine
Attorney General Steven Rowe, FDA stated that Maine’s statute
that requires water sources to be on bottled water labels
was preempted. The strongly worded letter enunciates the
legal arguments of preemption of state bottled water labeling
laws by Federal law.
In
August 2000, FDA published in the Federal Register a report
entitled “Feasibility of Appropriate Methods of Informing
Customers of the Contents of Bottled Water.” This
study was required by the 1996 Amendments to the Safe Drinking
Water Act and examined potential methods for conveying water
quality information to consumers. FDA focused its analysis
on the type of information that would be analogous to that
required by public water systems pursuant to the consumer
confidence report (CCR).
FDA
determined that, for a variety of reasons, it would not
be feasible to include on a bottled water label all of the
information contained in a CCR. FDA was concerned that
the feasibility of keeping the label current due to changing
test results could jeopardize the accuracy of the information
on the label and cause the product to be misbranded. In
addition, FDA expressed doubt that the bottle water label
had enough space to address all of the CCR analogous information.
Similarly, FDA determined that distributing information
at retails stores in a pamphlet was also not feasible citing
concerns over ensuring that the information in current and
that the pamphlets are consistently available. Additionally,
FDA concluded that the Internet is not appropriate as the
sole means of providing information because not all customers
may have access to it.
Instead,
FDA concluded that appropriate and feasible means to inform
consumer about their bottled water included:
Over
the last few years, a number of state legislatures and regulatory
agencies have considered additional labeling requirements
beyond the national requirements, such as water sources,
telephone numbers, mineral content, and water quality information.
IBWA’s guiding principles for legislation or regulation
of bottled water labeling are outlined below.
Guiding
Principles of Bottled Water Labeling
IBWA believes the following set of principles should guide
the industry in addressing bottled water labels and labeling.
A national, uniform comprehensive approach must be applied
to labels and labeling requirements for bottled water, as
with other food products.
In
promulgating the standards of identity for bottled water
in 1995, FDA made determinations on the information necessary
to be included on bottled water labels. This information
along with the standards of quality for bottled water provides
consumers with the material facts necessary to have confidence
in bottled water. In 1990, Congress enacted the Nutrition
Labeling and Education Act (NLEA), which requires food manufacturers
to disclose nutritional information. NLEA requires bottled
water companies to comply with its provisions if they make
nutritional claims covered under NLEA, such as “sodium free”
or “low sodium” on their labels.
Any
health or therapeutic claims must be substantiated by reliable
scientific studies and comply with FDA requirements for
food product health claims.
Conclusion
The above principles
comprise a uniform comprehensive approach to labeling bottled
water and providing consumers with information about their
specific brand of bottled water. Consumers are empowered
by the choices they are able to make in a free market economy.
With the information currently required to be on the bottled
water label, consumers are able to have consistent information
to compare bottled waters and a means to obtain additional
information about their specific brand of bottled water
to assist them in making an informed decision on the bottled
water product.
