Monthly Archives: December 2013

After Busy 2013, FDA Has More Goals for 2014 Including Nutrition Facts, Menu Labeling and GMO Labeling

At this time of year, it’s worthwhile reviewing the 2013-2014 plan  of the FDA’s Center for Food Safety and Applied Nutrition, which was updated this past September.  Key targets for the new year include menu labeling and nutrition facts.  There is reason to pay close attention given the FDA’s busy 2013.  It tackled trans fats and defined “Gluten free” while also implementing major rules for the Food Safety & Modernization Act.  Based on the FDA’s stated priorities in its plan 2014 shapes up to be just as busy.

In the 2013-2014 plan, Program Goal 4 is to “Improve public health indicators through better nutrition and dietary choices” which includes “implement[ing] science-based strategies that encourage consumers to choose healthy diets.”  Specific goals grouped under these broader goals include the following:

  • 4.1.6:  Develop for publication in 2015 final rules to update nutrition facts label and serving size information to improve consumer understanding and use of nutrition information on food labels.
  • 4.1.8:  Publish final rules for requiring nutrition information on menus and on vending machines.
  • 4.1.11: Publish final guidance to help manufacturers who wish to voluntarily label their foods as being made with or without the use of bioengineered ingredients.

All of these have target dates of 2014 except for voluntary GMO labeling, which was listed as 2013 but has not yet been implemented.

Nutrition Facts:  Proposed changes are expected in “early 2014.”   The details of potential changes will impact serving size and label format, with other potential modifications relating to daily values and additional nutrient declarations.

Menu Labeling: This initiative is borne out of the Affordable Health Care Act and will require restaurants with 20 or more locations to disclose the amount of calories in their food.  Although final guidance was slated for 2013, it looks like it will not arrive until 2014 due to continued obstacles to its implementation.  The delay is primarily due to proposed legislation and debate over whether these requirements should apply to grocery stores and pizza chains, both of which complain that it is not possible or unduly burdensome to meet the labeling requirements.

GMO Labeling:  Notably, FDA guidance has the potential to preempt state laws requiring mandatory labeling of GMOs.   In other words, guidance on voluntary labeling might preclude local efforts to mandate labeling of GMOs.  On the other hand, inconsistent court or jury rulings is not helpful either.  FDA chief Margaret Hamburg said in early November that the regulations would be finalized “soon” without any further elaboration.

Finally, Goal 4 includes “Reduce sodium and industrially-produced trans fat in the food supply” which includes, for 2014,”[c]omplete a plan for implementation in 2015 to promote broad, gradual reduction of added sodium in the food supply.”  It remains unclear how the FDA intends to implement this proposed reduction which is significantly different than its recent effort to eliminate trans fats.

Coca-Cola Target of Class Action Lawsuits Regarding Phosphoric Acid

Coca-Cola is the target of three recently-filed putative class action lawsuits in California alleging that the soda was misbranded in violation of federal and state laws because it fails to state that it includes a chemical preservative and artificial flavoring (both of which are alleged to be phosphoric acid).

Specifically, plaintiffs  contend that Coca-Cola’s labeling and advertising of its Coke products is unlawful because those product include phosphoric acid but are not labeled as including an “artificial flavor” or “chemical preservative.”  Plaintiffs contend  that phosphoric acid, as used in Coca-Cola, is more consistent with chemical preservatives or artificial flavoring under the Food Drug and Cosmetic Act than natural flavoring and “[c]ontainers of Coca-Cola do not contain a statement that they contain artificial favoring and or chemical preservatives.”  Accordingly, plaintiffs allege that Coca-Cola containers  are misbranded under both the FDCA” and corresponding provisions of California state law.  Please see the most recent complaint here.