Food advertising rules are in flux, and we have written about the FTC's recent focus on "natural" claims. Here are two more food advertising developments.
First, the FDA recently updated the rules governing nutrition facts labelling. The new rules (which cover more than 250 pages) require food manufacturers to include "added sugars," remove "calories from fat," declare several new nutrients, and implement a new label design and format - among many other things. For companies with $10 million or more in annual food sales, these new labelling rules take effect July 26, 2018. (Others get one additional year to comply.)
Second, there are reports that the FDA plans to reevaluate the rules governing use of the word "healthy" on food labels. Last year, the FDA sent a warning letter to Kind, LLC ("Kind") over the company's use of the word "healthy" on labels for its famous Kind Snack Bar. According to the FDA, certain Kind Bars did not meet the current requirements for use of the term "healthy." For example, FDA said the bars contained too much fat to constitute a "healthy" food. As a result, the FDA asked Kind to remove the word "healthy" from certain packaging.
Kind responded with a so-called "citizen petition" challenging the FDA's current thinking on the term "healthy." Kind argued that, under the FDA's current rules, manufacturers could label certain foods like fat-free desserts "healthy," but could not label as "healthy" products that contain beneficial but high-fat ingredients, like nuts, olives, avocados, and salmon. The company argued that the FDA's current thinking and guidance represented an antiquated view of what "healthy" means to modern consumers. In response, the FDA has now not only agreed to reevaluate its current labeling guidance, but also allegedly allowed Kind to label its snack bars "healthy and tasty, convenient and wholesome, economically sustainable and socially impactful," and to continue to use the term "healthy" as part of its "corporate philosophy".
We will continue to monitor these issues and provide updates. Thank you to Frankfurt Kurnit summer associate Jordyn Eisenpress for her help with this Alert.
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