Here are answers to your important questions regarding the FDA’s final ruling for the revised Nutrition Facts Label:
When can I get the new label?
Our software provider, Esha, has provided us that the updated patch and we can now produce the new label.
When do I need to have the new Nutrition Facts on my food product by?
January 1, 2020 is the compliance date. However, an extra year is given for manufacturers who have less than $10 million in annual sales.
What should I do now?
We will need the nutrition information, for all your ingredients and sub-ingredients, updated with the newly added nutrients: Potassium, Vitamin D and Added Sugars. If you use a flour, for example, then you will need to get that updated information for us in either a 100gram report or their updated Nutrition Facts – before we can complete your label.
If you would like to change to the new label as quickly as possible, then we suggest you start to gather this information now. You may need to call your suppliers to find out when they will be updating their products with these new nutrients.
What are the changes to the nutrition facts label?
There is a lot of information for us to share with you regarding these changes; however, for now, this helpful infographic may give you a general understanding of the differences. Click here to see the infographic.
The food industry’s leading litigation experts met in Chicago at the end of September for a Food Advertising and Litigation Conference hosted by the Food and Drug Law Institute (FDLI). The panel, which was comprised of some of the industry’s top lawyers and leaders, discussed the litigation trends they see today in food mislabeling.
With increased consumer and media attention on the food industry lately regarding transparency in labeling, it seems that more and more companies are finding themselves on the hot seat. “The politics of food is strong and growing,” explained Beth Johnson, Principal and Founder of Food Directions, LLC, “and transparency is more of an interest.”
As this interest in transparency grows, it has become even more urgent that food companies proceed with a bit of caution when making marketing claims of healthiness, such as “all natural,” citing quantity of ingredients, such as “Rich in Antioxidants,” or providing incomplete competitive claims, such as “X fewer calories” and “X less grams of fat.”
What used to be a simpler process for resolving consumer complaints has become much more complex. Bruce Silverglade, Partner at Olsson Frank Weeda Terman Matz PC, explains that in the past, a company would get a warning letter from the FDA which used to be fairly simple to resolve, but now, as consumers have a much higher level of awareness about food labeling and many more avenues to pursue advocacy and activism, warning letters can now lead to State Attorney Generals taking action or a class action suit. Mr. Silverglade warns, “Food companies must ask themselves, is it worth the risk?”
To better understand how to avoid common labeling issues, let’s first start with what the top trends are for labeling litigation this year. Several of the most discussed mislabeling pitfalls discussed amongst the panelists at the FDLI conference included:
·Natural Claims: Even though it seems that natural claims are being scaled back or removed entirely from many food labels ever since the Naked Juice $9 million settlement in 2013, natural claims are still alive and well in lawsuits today. Kashi, Bear Naked, and Trader Joe’s have all removed natural claims from their packaging after lawsuits, as well. With the natural term becoming passé, there seems to be many synonyms for natural that are gaining in popularity, like “wholesome,” “real,” “whole,” and “nutritious.” Could these be the new ‘natural?’ Will these new natural names be next on the target list for lawsuits?
·Super Foods: Nutritionally dense super foods such as pomegranate, quinoa or kale can sometimes be promoted as the single or main ingredient of a food item. But often times many products don’t contain enough of the super food to qualify as the main ingredient. This potential discrepancy can be easily checked when looking at the ingredient statement. Per FDA regulations, ingredients are listed in descending order of predominance; meaning, the primary main ingredient is listed first followed by the second largest ingredient component and so on. If you see pomegranate or kale as the 6th or 7th ingredient, then chances are there is a small percentage of this food in the recipe. Last year, a class action suit was filed against Chia Crisps for listing chia seeds as the main ingredient, when in fact black beans was the first ingredient listed.
·“Made” Claims: Claims such as “Handmade,” “Craft made,” “Made from Scratch,” or “Made in the USA,” have come under fire the past few years, especially in the alcohol industry. Maker’s Mark won a lawsuit this year where the plaintiffs stated that they over paid for their bourbon because of the “handmade” claim. Although “Made in USA” has gained in usage, companies need to be aware of implications for the Federal Trade Commission (FTC). The FTC states that all, or virtually all, must be made in the U.S. in order to claim “Made in USA.” Some states, like California, also have laws that state a specific percentage of the materials used must be from the U.S.
The speakers at the FDLI conference also offered a number of useful tips for avoiding these common pitfalls. Some included:
·Improve company-wide communication between key departments. Stephen Baker, Director, FTC Midwest Region, explains that one of the biggest reasons a company falls into trouble is the disconnect between departments, “technical people and marketing people are not on the same page.” Food companies should try to better discuss key marketing initiatives to ensure that what is being said is actually true.
·Be careful about claims on both your food label and your website. With the accessibility of the Internet, food manufacturers have many more eyes on what is listed on their label or claims being marketed. Mr. Silverglade explains that the FDA now uses company websites for reviewing information listed on labels – especially if the website address is listed on the food label’s Information Panel.
·Implement systematic risk assessment. Companies can set up an algorithm to determine risk, and make it a routine part of taking food products to market. Food companies must ask themselves, is it worth the risk to stretch the truth? Is this a topic that resonates in the mainstream media? What type of product is it? What is the size of the company? Considering questions like these can help determine whether you might be a likely target.
We’ve seen a flurry of significant cases and regulatory actions in food advertising and litigation in recent years, many of which have had far-reaching implications for all food product manufacturers. It’s important to stay on top of what’s happening in federal agencies and the court of public opinion to best position your food business in the market to stay out of the litigation circuit.
The FDA recently published a supplemental rule that establishes a Daily Reference Value (DRV) for added sugars on the food labeling of American food products. Initially proposed in March of 2014, the requirement has been a hotly-contested feature of nutrition labeling reform in recent years. Aimed to "...assist consumers in maintaining healthy dietary practices" the new information "...is consistent with current data on the associations between nutrients and chronic diseases or health-related conditions, reflects current public health conditions in the United States, and corresponds to new information on consumer behavior and consumption patterns." In a prior review of American dietary habits, the FDA determined that solid fats and added sugars make up inordinate proportions of American diets. On average, 35 percent of these calories provide no nutritional benefits and add to weight management issues.
Consequences for Food Manufacturers
In the face of growing rates of obesity, heart disease, and diabetes among the American populace, the new rules take a clear shot at the processed foods industry in the United States. It remains unclear what cost the new regulations will exact upon food manufacturers and their profit margins. Aimed primarily to increase awareness of the adverse effects of added sugars, the new food labeling provisions will ensure the following of American food products: An established DRV of 10 percent of total personal caloric intake from added sugars, or 200 such calories for the average American consumer. A required statement of the products' added sugars as per percentage of daily value. The presentation of a clear, simplified footnote on nutrition labels, stating " The % Daily Value tells you how much a nutrient in a serving of food contributes to a daily diet. 2,000 calories a day is used for general nutrition advice."
In their explanation of the new rules, the FDA cites findings from the 2015 Dietary Guidelines Advisory Committee (DGAV). To wit, the FDA "...considered the scientific evidence that the DGAC used, which showed that it is difficult to meet nutrient needs while staying within calorie requirements if one exceeds 10 percent of total calories from added sugar, and has determined that this information supports this daily value for added sugars. The DGAC also recommended that Americans limit their added sugars intake to less than 10 percent of total calories." Curiously, while the FDA has taken strongly to the DGAV's suggestions, neither the Department of Health and Human Services (HHS) nor the United States Department of Agriculture (USDA) has followed suit and adopted the regulations into the 2015 Dietary Guidelines for Americans.
The FDA announced in June that it will begin mandating American food companies to oversee the removal of partially-hydrogenated oils (PHOs) from their products. Food manufacturers will have 3 years to remove PHO's (Partially Hydrogenated Oils) from their foods. As a major source of artificial trans fats, the presence of PHOs in processed foods has been the source of a decades-long debate regarding whether or not they meet the FDA’s “generally recognized as safe” (GRAS) designation. Food manufacturers have the option to petition the FDA for approval of certain usage of PHO's. Approval must be granted, otherwise all PHO's must be removed by the end of the 3 year period.
The FDA’s 2006 mandate to make national food labels more transparent spurred a national conversation about the outright ban of PHOs and trans fats. The FDA originally announced their plan to ban trans fats in November, 2013. This most recent announcement takes a definitive stance on the issue, and provides American food manufacturers with a three-year grace period to adjust their ingredients and submit any potential alternatives to the FDA for testing and compliance.
LDL: A Smoking Gun
A central component of the FDA’s case rests in the findings of the independent Institute of Medicine (IOM), which connected the consumption of PHOs with elevated levels of low-density lipoprotein (LDL) cholesterol in the bloodstream, which elevates the risk of coronary heart disease. A statement released by the Institute concluded, “transfat provides no known health benefit and that there is no safe level of consumption of artificial trans fat. Additionally, the IOM recommends that consumption of trans fat should be as low as possible while consuming a nutritionally adequate diet.”
From Transparent Food Labeling to an Outright Ban
In the constant battle between government regulators, public policy advocates, and the food manufacturing industry, many advocates speak to the efficacy of the decision, citing the decline of trans fat intake among American consumers from 4.6 daily grams in 2003 to roughly 1 gram per diem in 2012.
A Victory for Public Health, A Setback for the Private Sector
“While consumption of potentially harmful artificial trans fat has declined over the last two decades in the United States, current intake remains a significant public health concern,” said FDA Commissioner Margaret A. Hamburg, M.D. “The FDA’s action today is an important step toward protecting more Americans from the potential dangers of transfat.” Hamburg elaborated that further reduction of trans fats in American diets could reduce heart attacks nationwide by up to 20,000 and preventable deaths from heart disease by up to 7,000 per annum.
While many in the public health sphere view the new regulations as a landmark victory in the public health sector, the American food manufacturing industry will not likely view the measure as kindly. For them, the new requirements mean untold dollars that must be spent in research and development, as well as in marketing and repackaging for certain products.