FDA Allows KIND to Use “Healthy” Claim on its Labels and Will Reevaluate “Healthy” Claims

On May 10, 2016, the FDA announced that Kind LLC may label its snack bars “healthy” so long as it’s clearly part of its “corporate philosophy” and not a nutritional statement.  In conjunction with this statement, the FDA stated that it will be reevaluating the standard for “healthy” claims and, more broadly, all nutrient content claims.

The announcement relates back to a warning letter issued by the FDA to KIND in March 2015 asserting that the labeling of numerous KIND products bore a variety of nutrient content claims, including “healthy” claims, but the products did not meet the requirements to make such claims.  In its recent announcement, the FDA stated that KIND had taken steps to revise its the labels to address these issues.  The FDA then noted that, after resolution of that issue:

KIND requested confirmation that it could use the phrase “healthy and tasty” only in text clearly presented as its corporate philosophy, where it isn’t represented as a nutrient content claim, and does not appear on the same display panel as nutrient content claims or nutrition information. In our discussions with KIND, we understood the company’s position as wanting to use “healthy and tasty” as part of its corporate philosophy, as opposed to using “healthy” in the context of a nutrient content claim. The FDA evaluates the label as a whole and has indicated that in this instance it does not object.

KIND described this permission as a reversal of its 2015 FDA warning letter.  The FDA classified it as a reevaluation after KIND removed or amended nutritional claims on its product labels to meet regulatory standards.

Both positions are valid.  The FDA’s announcement concluded by stating:

In light of evolving nutrition research, forthcoming Nutrition Facts Labeling final rules, and a citizen petition, we believe now is an opportune time to reevaluate regulations concerning nutrient content claims, generally, including the term “healthy.” We plan to solicit public comment on these issues in the near future.

The evaluation of “evolving nutrition research” will no doubt extend to saturated fats in nuts and other foods.  The 2015 FDA Warning Letter to KIND said the term “healthy” was improper because the products did not qualify as “low in saturated fat” as required under FDA regulations.  Most of that saturated fat content came from almonds, cashews or other nuts.  But the FDA’s regulations for what qualifies as “healthy” are 20 years old and conceived when healthy eating was viewed as a low-fat diet.   Much has changed since then including the understanding that some fats are healthy.  Under the outdated, current standards, almonds, avocados, and salmon are generally deemed unhealthy while many  fortified sugary cereals are “healthy.”  Creating new standards for “healthy” claims will take significant time so do not expect any changes until late 2017 at the earliest.

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