It’s Groundhog Day for Food Labeling, Again: The Food Labeling Modernization Act is Back

In a repeat of 2013, 2015 and 2018, Rep. Frank Pallone (D-N.J.) has yet again introduced the Food Labeling Modernization Act (FLMA).  As in the past, there are a few new things of note, and a few other things have been removed (e.g., requirements for sesame allergen labeling, which was accomplished earlier this year).

The latest version of the bill again directs FDA to establish a standard symbol system for front-of-package labeling for conventional foods.  A food would be misbranded unless its principal display panel bears “summary nutrition information that reflects the overall nutritional value of the food or specified ingredients” as required in regulations that would be issued by FDA.

As noted in the previous iterations, the 2021 FLMA focuses on nutrients.  As FDA has recognized, modern nutrition science no longer focuses on nutrients, but instead focuses on certain foods and dietary patterns

The FMLA seems to be a compilation of items that have been subject to petitions by various NGOs and others covering a wide range of topics, as well as a few things already in process as part of FDA’s Nutrition Innovation Strategy, including:

• Amending the Food Drug and Cosmetic Act to address the amount of wheat and grains in grain-based products, and real fruit, vegetable, and yogurt required in products bearing fruit, vegetable and yogurt claims. Interestingly, this provision also applies to the terms “froot” and “frooty.”
• Revising the term “healthy” and addressing nutrient content claims that “may not be compatible with maintaining healthy dietary practices” and how those claims should be qualified. Defining the term “natural.”
• The addition of “gluten-containing grain” when referencing food allergens, and the addition of “gluten-containing grain” to FSMA’s Hazard Analysis and Preventive Controls, as well as to food allergen inspections language.
• A review of Standards of Identity, as well as amendments to existing standards to allow for the use of salt substitutes where appropriate. The bill includes a specific provision related to a minimum level of live and active cultures per gram – an issue that has been addressed already in FDA’s June 2021 final rule to amend the standard of identity for yogurt.
• A study on the fortification of corn masa flour.
• Regulation to establish levels of allulose, polydextrose, sugar alcohols or isolated fibers above which require a warning that the food contains levels that cause “deleterious health effects.”
• A provision setting forth requirements for infant and toddler beverages.
• A study on text size and color contrast that make food labeling information visually accessible to most consumers.
• Regulations to establish requirements for the sale of food online, including access to label or labeling information prior to purchase

The bill does not include any provisions to fund the work to conduct the studies and establish the required regulations, and includes a provision requiring the issuance or proposed regulations within one year of passage (shortened from two years in the last iteration), and two years to finalize the regulations (shortened from three years) – and if final regulations are not issued within that timeframe, the proposed regulations become final on that deadline. This is an incredibly short timeframe, and would seemingly make final regulations that do not have the benefit of any incorporation of comments.  As to whether this version will eventually become a law, it is doubtful given that this is the fourth iteration and a partisan bill, but we will alert you if things change.