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  1. Analysis
March 9, 2010

FDA gets tough but leaves scope for co-operation

The action taken by the US Food and Drug Administration (FDA) last week against 17 food manufacturers underlines its resolve in addressing food labelling. But, Ben Cooper writes, the FDA has left the way open for industry to be involved in the development of future policy and it appears to be an opportunity food companies are keen to grasp.

The action taken by the US Food and Drug Administration (FDA) last week against 17 food manufacturers underlines its resolve in addressing food labelling. But, Ben Cooper writes, the FDA has left the way open for industry to be involved in the development of future policy and it appears to be an opportunity food companies are keen to grasp.

There is no doubt that the letters written by the Food and Drug Administration (FDA) to 17 food companies last week threatening to remove products compulsorily unless labelling is changed represents a ramping up of the government’s drive to regulate food labelling in the US.

However, while the FDA’s move represents a harder line than its intervention last year over the Smart Choices initiative, the regulator still appears to want to engage actively with industry, and for industry to be involved in the development of regulations.

Dr Margaret Hamburg, the Obama-appointed head of the FDA, said she recognised that the examples identified for corrective measures were “not indicative of the labelling practices of the food industry as a whole”.

Crucially, in an open letter to the industry on 3 March, she left the door open for cooperation with industry over future policy. “I am confident that our past cooperative efforts on nutrition information and claims in food labelling will continue as we jointly develop a practical, science-based front-of-pack regime that we can all use to help consumers choose healthier foods and healthier diets.”

Dr Hamburg continued: “We intend to work closely with food manufacturers, retailers, and others in the design process, and I hope that every food processor will contribute its views on how we can do this in the best way possible.”

That olive branch is significant. Since President Obama took office, the FDA has taken a far more hands-on approach to food policy. Particularly given Mrs Obama’s active interest in tackling childhood obesity, food labelling is seen as a “top priority” by the FDA. There are essentially two strands to the FDA action.

First, as the latest warning letters illustrate, it is concerned over misleading labelling, in particular insufficiently substantiated health claims on products marketed as healthier or better for you.

While the open letter was conciliatory in tone for the most part, Dr Hamburg said the industry needs to make “more progress” over health claims. She said that following the letter she wrote last year, “some manufacturers have revised their labels to bring them into line with the goals of the Nutrition Labeling and Education Act of 1990. Unfortunately, however, we continue to see products marketed with labelling that violates established labelling standards.”

The letters last week said labels on 22 products contravened the Federal Food, Drug, and Cosmetic Act. Violations included using unauthorised health claims, unauthorised nutrient content claims or the unauthorised use of terms such as ‘healthy’ and others that have regulatory definitions.

But the FDA is also looking at overall nutritional labelling and the development of a unified front-of-pack labelling system. Given the industry’s desire to be as involved as it can be in that process, responding positively both to the warning letters and the open letter is a politic move.

The signs are that the industry is doing precisely that. For example, both Nestlé and Schwan responded promptly saying that they were cooperating fully with the FDA. Diamond Foods said: “We expect to be able to make any changes required to our packaging and website expeditiously and with minimal expense.”

Not all the companies cited have been so accommodating, however. One notable exception is pomegranate juice producer Pom Wonderful. It said: “All statements made in connection with Pom products are true, and are supported by an unprecedented body of scientific research.”

However, Pom appears to be an isolated case. The general realisation that industry needs to preserve a positive working relationship with an FDA resolutely pursuing its plans on labelling is borne out in what the Grocery Manufacturers’ Association (GMA) said in response to Dr Hamburg’s letter: “GMA agrees with and supports federal laws requiring food labels to be truthful and non-misleading…GMA and its member companies support, and are working with, the FDA to enhance our ability to convey nutrition information clearly and consistently to consumers.”

Coincidentally, the FDA letters were sent just as the leading consumer advocacy group in the US, the Center for Science in the Public Interest (CSPI), published a major report on food labelling.

In its report, Food Labeling Chaos – the Case for Reform, CSPI makes recommendations pertaining to front-of-pack nutritional labelling, the improvement and simplification of the Nutritional Facts panel, ingredient labelling and health claims.

CSPI says “key nutrition information should be summarised using easy-to-comprehend symbols” on the front of packs. Suggested improvements to the Nutrition Facts panel include removing extraneous information, providing clearer, more accurate information on calorie, sugars, and fibre content, and specifying the size of servings in ‘per serving’ information.

On health claims, CSPI calls for regulations “prohibiting misleading claims that a substance in a food can affect the structure or function of a bodily system’. In addition the FDA should no longer permit ‘qualified health claims’ that “by definition are based on weak scientific evidence”.

CSPI also calls for a ban on ‘0g trans fat’ claims for foods that are not also low in saturated fat and cholesterol, and rules to stop companies from claiming a food is made with whole grains unless the percentage of whole grains is prominently disclosed.

Bruce Silverglade, director of legal affairs at CSPI and co-author of the report, says the organisation “supports the FDA crackdown on deceptive food labelling” but takes issue with Dr Hamburg’s view that the violations are not indicative of a widespread problem. “We hope that the FDA continues to be vigilant as there are literally hundreds of other companies engaging in similar violations of US labelling laws.”

According to Silverglade, around two thirds of the areas highlighted in the CSPI report are being addressed by the FDA as part of a “sea change” in food labelling policy. “The agency isn’t addressing every area we raised and they are sometimes addressing issues we raised in a different manner than we suggested but we have certainly entered a new era that represents a major departure from the previous administration.”

The FDA move also came as the Food Standards Agency (FSA) in the UK published its official report on front-of-pack nutritional labelling, which has followed probably the most extensive consumer research into this area ever conducted and a consultation period during which the views of industry and other stakeholders were sought.

The FSA is still backing the incorporation of ‘traffic lights’ colour-coded warnings, albeit now within a flexible hybrid system which allows for percentage of Guideline Daily Amounts (GDA) to be used along with either traffic lights or text. Ideally, FSA says the system should incorporate all three. The Food and Drink Federation (FDF), the GMA’s peer organisation in the UK, has always advocated a system based on GDAs with no colour-coded element, as has leading food retailer Tesco. The other supermarket chains have all supported colour-coding.

Even more significantly, the work of the FSA has been watched very closely by Dr Hamburg and her staff and she is known to find the traffic lights system persuasive. The FDA is currently conducting consumer research into eight different front-of-pack labelling systems, including traffic lights.

So it would appear that developments on the other side of the Atlantic could have a significant bearing on what happens with US food labelling policy. Industry advocates stateside will be hoping to have more success in putting over their arguments than their counterparts in the UK appear to have had.

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