Voluntary Front-of-Pack Food Labeling: A Way to Combat the Obesity Epidemic?

By Cassandra A. Soltis –

That’s what the Food and Drug Administration (“FDA”) is hoping anyway.  In a notice expected to be published in the Federal Register on Thursday, April 29, 2010, FDA will announce that it is requesting data and information from “all interested parties,” including the food industry, graphic and package designers, marketing experts, and the nutrition community, both domestic and foreign, on the use of front-of-pack (“FOP”) nutrition symbols on food packages or shelf tags.   This request for information follows FDA Commissioner Margaret Hamburg’s letter to industry last month, in which she urged companies to review their food labels and remove false or misleading claims that prevent consumers from “mak[ing] informed and healthy food choices.”  The notice also follows First Lady Michelle Obama’s recent announcement of her Let’s Move initiative, which has the goal to reduce the prevalence of childhood obesity, in part, by having parents and children choose healthier foods.

Citing to “[t]he prevalence of diet-related diseases in the U.S. population and the need to accommodate Americans’ increasingly busy lifestyles,” FDA stated that nutrition information needs to be tailored to help consumers make better food choices.  To that end, FDA indicated that voluntary FOP labeling should be “[b]ased on standardized nutrition criteria that are grounded in the Dietary Guidelines for Americans,” “[w]idely adopted by food retailers and manufacturers,” and appear in a standardized format that consumers of varying literacy and educational levels can comprehend and notice.

FDA and the U.S. Department of Agriculture are already working with stakeholders in the public and private sectors to develop a “voluntary” FOP label.  Although it appears that a manufacturer’s use of any FOP label scheme agreed to by FDA would be voluntary, FDA’s stated goal of having a standardized format suggests that manufacturers might not be able to use an alternate FOP label scheme of their own choosing.  Depending on the underlying rationale, such a restriction could invite a First Amendment challenge.   An additional impact on industry could result from the imperative to reformulate products so that there is no loss of market share to competing products that an FOP labeling scheme designates as being more nutritious.

FDA stated that it is currently conducting studies on consumer understanding of nutrition symbols.  However, the Agency is interested in data and information that has not been published, particularly those studies on a wide range of nutrition symbol schemes and on consumer responses to different symbol schemes.  Other data and information requested include:

• whether FOP labeling may cause manufacturers to reformulate their products;
• design considerations, such as color, location, shape, and amount of information; and
• consumer attitudes toward, and use of, such symbols, including whether FOP labeling affects purchasing decisions.

The Agency is also considering issuing a draft guidance on voluntary calorie declarations and a draft guidance or proposed rule on dietary guidance statements. 

Comments on this FOP labeling notice will be due 90 days after publication in the Federal Register.