Enforcement of Gluten-Free Labeling Rule Kicks In

By Ricardo Carvajal —

FDA is set to start enforcing its gluten-free labeling rule (for our prior posting on the rule, see here).  To make sure you didn’t miss the onset of the compliance deadline of August 5, FDA issued reminders in the form of a Constituent Update and a blog posting by Deputy Commissioner for Foods and Veterinary Medicine Michael Taylor.  FDA also included a reminder in the most recent edition of CFSAN’s News for Educators, which asserts that “an estimated 5 percent of foods currently labeled ‘gluten-free’ contain 20 ppm or more of gluten.”  That assertion suggests that FDA will have little difficulty identifying potential candidates for its inaugural enforcement activities.

 FDA’s blog posting notes that the gluten-free labeling rule applies to packaged foods, but also states that “restaurants making a gluten-free claim on their menus should be consistent with FDA’s definition” (emphasis ours).  The blog links to a National Restaurant Association web page which suggests that restaurants “must” comply with the rule.  We leave it to others to elaborate on the distinction between “should” and “must.”  For practical purposes, we suspect that plaintiffs’ lawyers won’t perceive much of a difference – a phenomenon that at least some insurance brokers seem to be counting on.