ACI 5 th Advanced Regulatory and Compliance Summit on Food and Beverage Marketing and Advertising...

ACI 5th Advanced Regulatory and Compliance Summit on Food and Beverage Marketing and Advertising

Chicago, Illinois

July 29, 2014

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Bruce SilvergladePrincipalOFW LawWashington, DC

Bsilverglade@ofwlaw.com202-518-5316

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FDA Nutrition Labeling Revamp

What Food Companies Need to Know To Update Their Marketing

Efforts

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ORIGINAL NUTRITION FACTS LABEL HAD A MAJOR IMPACT

Original label became effective in 1994

Emphasis at that time was on fat content

More than 6,000 new “low fat” foods were introduced in the marketplace in 1996

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• Trans Fat disclosure was added in 2006

• Trans Fat content in processed foods declined by about 50%

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• New FDA revisions are High Profile

• White House led announcement followed by statement by FDA Commissioner Hamburg

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Statement of FDA Commissioner Margaret Hamburg Emphasizes:

> Calories

> Serving sizes

> Percent daily values

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Marketing Impact – Strategic Planning

Threat or opportunity – Now is the time to consider new

strategic marketing efforts Almost every company will still

have a tool kit to work with The “tools,” however, will be

different

MARKETIG IMPACT – What will the changes entail?

Let’s take a look at the proposed changes and consider the new tools that may be available to communicate the health benefits of your product

MARKETING IMPACTS – BOLDER “CALORIE” DISCLOSURES

Total calorie content of foods will be emphasized to a greater extent

FDA wants to prevent mishap in 1996 where many new “low fat” foods had as many calories as traditional counterpart

Fat was replaced with sugar

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MARKETING IMPACTS – SERVING SIZES

More than 30 serving sizes (RACCs) will change; most will increase.

Serving size for ice cream will double – that means calorie content, as well as fat, sugar, and sodium content on the Nutrition Facts label will double as well

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MARKETING IMPACTS – SINGLE SIZE SERVINGS

New rules for single size servings Will require nutrition information

for entire package What will impact be on package

sizes? Will dual column labeling be an

option?

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MARKETING IMPACT – HEALTH AND NUTRITION CLAIMS

Increasing the amount of fat, saturated fat, cholesterol and sodium listed on the Nutrition Facts panel to comply with new serving sizes and single serving regulations will impact ability to use health and nutrition claims

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MARKETING IMPACT: HEALTH AND NUTRITION CLAIMS

Health and nutrition claims are limited when fat, saturated fat, cholesterol, or sodium content exceed 20% of the Daily Value

That limit will be reached more quickly, given that higher amounts of those nutrients will have to be declared

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MARKETING IMPACT – SODIUM

The DV for sodium will increase The cutoff for health claims for

foods with 20% or more of the DV for sodium remains the same

Result: Foods making health claims may have to decrease sodium content or drop the claim

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MARKETING IMPACT – FIBER CONTENT

FDA is proposing to change the definition of fiber

Certain ingredients will no longer be counted as “fiber” for disclosure purposes on the Nutrition Facts label

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MARKETING IMPACT: % DAILY VALUES

FDA proposes to give % Daily Values (DV) greater prominence

Will be placed on left side of label

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• Alternate Format

• Issued by FDA for comment

• Reveals Agency’s true agenda

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MARKETING IMPACT – ADDED SUGARS DISCLOSURE

FDA proposes to require new line on Nutrition Facts for Added Sugar Content

Not related to disease, but rather “nutrient density”

FDA’s own definition of “Healthy” does not consider sugar content

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MARKETING IMPACT – ADDED SUGARS DISCLOSURE

Will be enforced by huge recordkeeping and inspection requirement

Recordkeeping required even if little sugars are added

FDA inspectors may request formulas and other proprietary information

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MARKETING IMPACT – ADDED SUGARS DISCLOSURE

FDA study on utility of added sugars disclosure is still ongoing; impact on consumers unclear

Consumer confusion is likely to result – Here is why:

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Current

Proposed

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MARKETING IMPACT -FRONT OF PACKAGE NUTRITION LABELING SUMMARIES

Front of pack “Facts up Front” and Wal-Mart “Good for You” symbol currently in use

FDA considering issuing federal uniform scheme

Not part of this rulemaking, but coming down the road . . .

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QUESTIONS - LET’S TALK

Bruce Silverglade Bsilverglade@ofwlaw.com 202-518-5316

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