Meet the lawyer who created the food nutrition label
It is hard to imagine any lawyer whose work has been seen by more people—or, for some, more derided. While the ubiquitous nutrition label is now taken for granted, getting it onto products wasn’t so simple. It called for creative legal maneuvering. (Image from Shutterstock)
“People ought to know what they’re eating.” That’s why, Peter Barton Hutt tells me, in the early 1970s, as chief counsel for the U.S. Food and Drug Administration, he created the nutrition label on foods.
It is hard to imagine any lawyer whose work has been seen by more people—or, for some, more derided. There are only 14 Utz cheese curls in a serving size?
Hutt turned 90 last month. He was recently named Covington & Burling’s first “Retired Partner in Residence,” an apt title for someone who works five days per week in the firm’s Washington, D.C., office.
Except for a four-year hiatus at the FDA from 1971 to 1975, Covington is the only other place he’s worked. He’s been practicing food and drug law there since 1960, following his graduation from Harvard Law School the previous year.
While the ubiquitous nutrition label is now taken for granted, getting it onto products wasn’t so simple. It called for creative legal maneuvering. In an interview, Hutt shared his recipe with me.
Peter Barton Hutt celebrated his 90th birthday at the Cosmos Club in Washington, D.C. He was recently named Covington & Burling’s first “Retired Partner in Residence.”
The nutrition label: legal ingredients
Hutt’s exposure to legal issues surrounding food came early. His father owned a retail dairy operation in Buffalo, New York. As a teen, Hutt delivered milk during summer vacations.
Later, when Hutt was a law student, the elder Hutt had some questions about milk-labeling laws. He presented them to his son.
“‘You’re a budding lawyer,’” Hutt recalls his dad saying. “And I had to figure out what the answers were.”
On his first day as the FDA’s top lawyer, Hutt met with the agency’s commissioner. His new boss gave him a list of major projects, which included creating a nutrition label for foods. Hutt had previously served on a panel of a White House Conference on Food, Nutrition and Health, and the report he wrote thereafter strongly recommended nutrition labeling.
And just as when the budding lawyer had been presented with food-labeling questions by his father, Hutt once again needed to figure out how that would work.
Historically, he explains, the FDA did not believe it had the authority to make law. The agency interpreted the Federal Food, Drug and Cosmetic Act as limiting its power to promulgating policy and procedural provisions.
As a result, it acted through litigation. “My predecessor,” Hutt explains, “had to make all new law by bringing cases against the [food and drug] industry for violating his interpretation of the law. I got in there, and I said, ‘That’s the most inefficient way of doing things.’”
Hutt, in need of a more effective way to achieve his objectives for both food and drug regulation saw the law differently. He was of the opinion that it “authorized FDA to propose and enact binding substantive regulations.”
In other words, Hutt explains, his interpretation gave the FDA the power to engage in so-called “substantive rulemaking.” It led to a “total transformation of FDA,” he says.
But in the case of the nutrition label, Hutt needed one more ingredient to get them onto foods.
Rulemaking, he says, can only be used to implement a statute. “So what provision in the Federal Food, Drug and Cosmetic Act would I implement?” Hutt recalls asking himself. “There wasn’t a single provision about nutrition in the statute.”
He says he seized upon an “obscure provision that I don’t think FDA had ever used before,” which he paraphrases as “the failure to reveal material facts is as much a misbranding as an actual falsehood.”
So “I said ‘aha!’ I’ll create the nutrition label and argue that the failure to have this label is the failure to reveal material facts—since the nutrition composition of the food is very, very material to the health of the country.”
Related article from the ABA Journal magazine: “Food Fight: Do lawsuits challenging product labels benefit consumers?”
But didn’t food and drug companies see the FDA’s use of substantive rulemaking as an unlawful power-grab? I ask Hutt.
It was never challenged, he tells me. Those companies, he says, were “concerned about FDA being forced [by Congress] into legislation that would be infinitely worse than what they and I and the consumer groups—I always included them—would be willing to negotiate.”
Hutt’s work established that there was a “path forward” for the nutrition label. But then came six months of work to “put the whole superstructure into place,” he says.
Numerous decisions remained for the FDA, such as which nutrients would be included on the label, where to place it on products, in what manner to express the information and its font size. Hutt chose at least 1/16 of an inch. That number remains today.
But don’t blame Hutt for those paltry serving sizes. That came later, with the enactment of the Nutrition Labeling and Education Act, which required the FDA to establish serving sizes. “FDA went out,” Hutt says, “and did an absolutely impeccable survey that found the average amount that everybody ate of all kinds of foods. And that’s what became the mandatory serving size.”
Getting food and drug law into the classroom
In the late 1970s, Hutt was enjoying success practicing food and drug law. But still something bothered him: He was concerned that food and drug law would be a “backwater of legal scholarship.”
The solution, he believed, was to get the subject into law schools. And to do that required a case book. Ironically, in the only text available, the subject of food labeling was now obsolete, thanks to the changes Hutt made during his tenure at the FDA.
Without a case book, Hutt says, food and drug law “would be taught only in a few law schools where resident professors had a unique interest or local practitioners taught based on their personal work experience.”
In 1980, Hutt co-authored the first edition of Food and Drug Law: Cases and Materials. The fifth edition was released in 2022. The text had the desired effect. Classes on food and drug law began to appear in law schools. Hutt tells me the subject is now taught in about 60 law schools across the country.
Hutt can count himself among those who teach it. Next month—as he has done since 1994—he will return to his alma mater to teach food and drug law during the school’s winter term.
The class moves at a brisk clip. Hutt will instruct students for three-and-a-half hours five days per week for three weeks.
“I love it. And I put on two beer parties,” he says. “Nobody believes I’m 90.”
Peter Barton Hutt teaches food and drug law at Harvard Law School.
While Hutt will be best-known for creating the nutrition label, a more accurate description of his FDA legacy will be his transformation of the agency from one of enforcement to modern administrative law. Under the newfound FDA authority, Hutt promulgated numerous regulations, including the review of nonprescription drugs, and he created the doctrine that a physician may lawfully prescribe a drug for an unapproved (off-label) use.
The time Hutt spent at the FDA is just a fraction of his 65-year career as a food and drug lawyer. His curriculum vitae fills a three-inch binder. His work includes countless lectures, articles, testimony before Congress more than 100 times and service on numerous biotech company boards and federal advisory panels.
And just because Hutt is the father of the nutrition label doesn’t mean that he exists on Brussels sprouts and celery.
“I eat like everyone else,” he says. “I’ve never met a vanilla ice cream I didn’t like.” He also enjoys stopping off at Five Guys some nights on the way home. His favorite hamburger place, he tells me, also “has the greatest hot dogs.”
The nonagenarian says he has no plans to retire. While he’ll no longer provide legal advice in his new role at the firm, he’ll be busy writing, mentoring lawyers and working on pro bono matters.
Hutt’s mother lived to be 107. He takes some vitamins and a few precautionary medications for his heart and blood pressure. His doctors have assured him he’ll make it to 100.
He recently hired a personal trainer. “My wife, who trains all the time, couldn’t motivate me. My personal doctor couldn’t motivate me. This personal trainer requires me to do things. That’s what I needed,” he says.
He adds, “I hope I go out writing my last footnote.”
Randy Maniloff is an attorney at White and Williams in Philadelphia and an adjunct professor at the Temple University Beasley School of Law. He runs the website CoverageOpinions.info.
