USDA, FDA Renew Efforts to Regulate Label Claims

Claims on foods are ubiquitous, with almost every food now bearing at least one claim on its front packaging. Given the continued growth in the use of label claims, food regulatory agencies are revisiting the circumstances under which certain label claims can be used. FDA and USDA both recently announced efforts to review label claims, with the goal of increasing consumer trust in and reliance on label claims.

Front-of-Pack Nutrition Information

FDA is currently conducting a consumer study on the impact of front-of-pack nutrition labeling, with the goal of creating a standard front-of-pack labeling scheme for foods. Front-of-pack labeling is intended to provide consumers with high-level nutrient information to allow consumers to make quick decisions about which foods to purchase and consume. FDA’s study will evaluate the effectiveness and usefulness of several proposed schemes. The study, and the anticipated future labeling scheme, are part of FDA’s efforts to increase healthy eating, as directed by the White House.

Front-of-pack labeling schemes that currently exist on the market are not enforced by FDA, nor are these schemes expressly permitted by FDA regulations. Instead, FDA determined that the agency would exercise enforcement discretion as to companies that use certain industry standard front-of-pack labeling schemes. The Facts-up-Front Nutritional Panel is a good example.

Studies of consumer perception of food labels demonstrate that the vast majority of Americans are aware of front-of-pack nutrition labeling, and more than half of study participants stated that they do consider front-of-pack nutrition labeling when making purchase decisions.

FDA Dietary Guidance Claims

Dietary guidance statements are statements that state or imply a food may contribute to a particular diet pattern. FDA released a draft guidance detailing the agency’s current thoughts on these types of statements. Though not binding, the guidance details the agency’s considerations when determining whether a label is misleading. In the guidance, FDA states that dietary guidance statements are not nutrient content claims (and are therefore not subject to the regulations applicable to nutrient content claims). These statements, however, must focus on the food or food group’s contribution to or maintenance of a nutritious dietary pattern and cannot include references to or implications of disease risk reduction or treatment. Claims that a food or food group may serve to treat or prevent a disease would be considered impermissible health claims and would be subject to FDA’s regulations and scrutiny.

Dietary guidance statements, however, should be based on consensus reporting endorsed by a group of experts that reflects the current thinking of the scientific community with regard to particular diet patterns. Companies can also rely on the dietary guidelines published by FDA and USDA as a consensus report to support a dietary guidance statement. Dietary guidance statements should reflect the key or principal recommendations provided in the consensus report. In addition, foods that bear a dietary guidance statement should meet nutrient limits identified by FDA.

“Product of the U.S.A.” Claims

USDA FSIS current policies permit the use of “Made in the U.S.A.” and “Product of the U.S.A.” on meat and poultry products that are processed in the United States, regardless of where the animal was born, raised, or slaughtered. However, following petitions and studies to assess consumer understanding of these claims, FSIS has determined that this policy is misleading to consumers and does not align with consumer expectations. Therefore, FSIS has developed a proposed rule that would redefine the requirements for the use of these voluntary claims. Under the proposed rule, these claims could only be used on FSIS products where all FSIS-regulated components of the product are born, raised, slaughtered, and processed in the U.S., and any non-FSIS-regulated components (other than spices and flavors) are of U.S. origin. The proposed rule does not impact any required country-of-origin labeling.