May 12, 2016
Food, Beverage & Agriculture Alert
On Tuesday, the FDA announced that it will reconsider regulations governing when companies may use the term “healthy” on food labels. This alert discusses what businesses in the food and beverage industry need to know.
On Tuesday, the Food and Drug Administration (FDA) announced that given evolving nutrition research, the forthcoming Nutrition Facts labeling final rules, and a citizen petition from KIND LLC, “now is an opportune time” to reconsider regulations governing when a company may use the term “healthy” on food labels.
Since the 1990s, the FDA has allowed companies to use the term “healthy” on packaging labels only when a product meets certain nutrient criteria. The FDA issued a warning letter to KIND about a year ago because certain of its granola bars labeled as “healthy” contained more saturated fat than the FDA permits when making such a claim. KIND changed its labeling to comply with current regulations, resulting in the FDA closing out its warning. Nonetheless, the company petitioned the FDA to re-evaluate its position regarding the meaning of “healthy,” noting that existing regulations prevent a number of whole, nutrient-dense foods from using that term, such as nuts, avocados, olives and salmon. KIND explained that the current regulations “require that the majority of foods featuring a ‘healthy’ nutrient content claim meet ‘low fat’ and ‘low saturated fat’ standards regardless of their nutrient density. This is despite the fact that current science no longer supports those standards.”
In response, the FDA has agreed to reconsider the regulations and will solicit public comment on these issues in the near future.  If the FDA ultimately decides to move forward, any official change in the regulatory definition of “healthy” will likely take years to complete. Nonetheless, stakeholders should consider their positions on the issue now so they are prepared to respond when the comment period opens. And, meanwhile, KIND is permitted to use the term “healthy” on its bars—not as a nutrient content claim but as reflective of its corporate philosophy.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.
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