Manufacturers Beware: FDA Launches Its Own "Front of Package" Labeling Investigation
While the CDC is using quantitative data to examine the advantages and disadvantages of "front of package" ("FOP") labeling, the FDA recently put manufacturers on notice of its own plan to launch a more qualitative investigation into certain FOP labels. The FDA's approach involves comparing the nutritional criteria used to support these labels against FDA regulatory requirements, and focuses specifically on foods that make "smart choice" or "heart healthy" type claims. While certain nutritional labeling is mandated, this type of FOP labeling is voluntary, but is nonetheless subject to the requirements of the Food, Drug and Cosmetic Act.
The FDA's investigation comes on the heels of research which reflects that when provided with FOP labeling, consumers are less likely to check the nutritional facts on foods, instead relying on the often bold and readily visible FOP claims. In its notice to manufacturers regarding the investigation it noted that they must take care to ensure that the FOP information presented to consumers is "nutritionally sound and well-designed to help consumers make informed and healthy choices and not be false or misleading." In other words, the labeling must be wholly supported by the nutritional content of the product and be presented in a way that does not distract consumers from analyzing the product's overall nutritional value, or lack thereof.
The recent CDC studies and the investigation being launched by the FDA make it clear that the federal government has seen a recent need to provide more oversight of FOP claims, ostensibly because it has identified areas of concern. Those manufacturers whose claims are now under the microscope should be prepared for a potential backlash, both in the marketplace and in the courtroom, if their claims are determined to be unsupported and misleading.
