Food Regulatory Update: FDA Moving Forward With Nutrition Facts and Menu Labeling Rules, Plans to Redefine “Healthy” and Encourage “Clean Labels”

In remarks at the National Food Policy Conference (NFPC) in Washington, D.C. on March 29, 2018, U.S. Food and Drug Administration (FDA or the Agency) Commissioner Scott Gottlieb, M.D., detailed the Agency’s wide-ranging plans on a number of food regulatory initiatives.

More specifically, and as detailed in FDA’s Nutrition Innovation Strategy, which Commissioner Gottlieb unveiled at the NFPC, the Agency plans to, among other things:

  • Implement the new Nutrition Facts Label and menu labeling;
  • Modernize food label claims, including redefining the “healthy” claim; and
  • Modernize ingredient labels to meet consumer demand for “clean labels.”

Just last year, and as we detailed in a previous blog post, in June 2017, FDA delayed indefinitely the Nutrition Facts and Supplement Facts Label and Serving Size rules.  And in May 2017, as we detailed in a previous blog post, the Agency delayed its Menu Labeling Rule.

By way of background:

  • Beyond a number of formatting changes for packaged foods, including increasing the type size for “calories,” “servings per container,” and the “serving size” declaration, and bolding the number of calories and the serving size declaration, significantly, the Nutrition Facts and Supplement Facts Label and Serving Size rules would require the inclusion of “added sugars” on the new labels.
  • FDA’s Menu Labeling Rule (discussed here, here, and here) requires restaurants and “similar retail food establishments” (e.g., convenience stores and grocery stores) that are part of a chain of 20 or more locations and that sell similar menu items to post on menus and menu boards: (1) calorie information; (2) a statement on suggested daily caloric intake; and (3) a statement that written nutrition information is available upon request (and provide such information upon request).

Per Commissioner Gottlieb’s remarks at the NFPC and the Agency’s Nutrition Innovation Strategy, FDA is taking final steps to provide consumers with the new Nutrition Facts label – which some in industry have already adopted – and will roll out menu labeling on May 7, 2018.

With regard to “healthy” claims, Gottlieb indicated in his speech to NFPC attendees that the Agency will be pursuing rulemaking to update the definition of “healthy” so it is based on nutrition criteria and food considerations that are more up-to-date than those being used for the current definition.  In addition, Gottlieb suggested that FDA needs to do more to help consumers determine which products are “healthy.”  To that end, Gottlieb indicated that the Agency will consider how to depict that food products are “healthy,” perhaps through a standard icon or symbol.  As some may know, in September 2016, FDA sought public comment on use of the term “healthy” on food labels.  To date, the Agency has received over 1,100 reply comments.

In recognition of consumers’ desire for labels with fewer ingredients and that are readable and understandable (i.e., “clean labels”), Gottlieb noted that FDA will re-evaluate the ingredients list on food packages to see what changes could make ingredient information more consumer-friendly.  Beyond readability, Gottlieb posited whether simpler names for certain ingredients (e.g., use of the name “vitamin B6” for “pyridoxine” or “vitamin B12” for “cyanocobalamin”) might help people better understand what is in their food.

We will continue to monitor these and other industry developments and provide more information as it becomes available.  If you have any questions regarding an issue raised in this post, please contact the author or the attorney at the firm with whom you are regularly in contact.​