The FDA wrote to the Grocery Manufacturers Association (GMA) and the Food Marketing Institute (FMI) in December in support of the trade groups’ front-of-pack labeling program, saying it would exercise enforcement discretion for certain aspects of the scheme.
In a letter seen by FoodNavigator-USA, FDA’s deputy commissioner for foods, Michael Taylor, said that the four standardized basic icons required by industry’s Facts Up Front program – for calories, saturated fat, sodium and total sugars – “would alleviate some of FDA’s concern regarding the potential for product labeling to mislead consumers by presenting only “good news” about nutrient content on the front of the package, which is the concern that the regulations governing nutrient content claims were intended to address.”
Taylor told GMA and FMI executives in the December 13 letter that if the icons were adopted by industry in a uniform manner, they “may contribute to FDA’s public health goals”.
The GMA and FMI were widely criticized for announcing their Facts Up Front program in October 2011, just weeks before the Institute of Medicine (IOM) released its recommendations for front-of-pack (FOP) nutrition labeling.
The IOM report said FOP schemes should interpret nutrition information for consumers, and recommended listing calories per serving as well as a rating of zero to three 'nutritional points' for saturated and trans fats, sodium, and added sugars.
The Facts Up Front program, on the other hand, highlights calories, saturated fat, sodium and sugar per serving, plus the option to highlight two ‘nutrients to encourage’.
The FDA letter stops short of endorsing the Facts Up Front program (initially called Nutrition Keys), saying that the agency intends to use enforcement discretion for some elements of the scheme, but not if companies use it “in a manner that misleads consumers”.
The use of enforcement discretion means it would be more lenient with food companies about their adherence to other regulations, as long as the Facts Up Front icons are used in a specific way.
In particular, the enforcement discretion would affect disclosure of polyunsaturated and monounsaturated fats in the Nutrition Facts panel; and disclosure of total fat, saturated fat, cholesterol, or sodium when they exceed certain levels – as long as the scheme’s icons are present front-of-pack, in the latter case, without optional ‘nutrients to encourage’.
Assessment and evaluation
“Over time, FDA intends to assess whether the Nutrition Keys labeling system is being applied in a manner that promotes public health and is useful to consumers,” the letter said.
Taylor added that the agency “will be happy” to work with the GMA and FMI in evaluating the system “to determine whether consumers notice, understand and use this front-of-pack labeling system.”
An FDA spokesperson added: “FDA will monitor the FMI/GMA initiative, which along with other information and research (including the IOM reports) will inform our thinking about this issue going forward. We encourage the food industry to modify their FOP approach, as necessary, based on the recommendations from the IOM and on information from monitoring/evaluation of FOP systems currently used or being rolled out.”
The FDA first said in October 2009 that it would consider using its regulatory tools if voluntary approaches did not result in a common, credible approach to front-of-pack and on-shelf labeling. Its warning to industry coincided with broad criticism for the now-defunct Smart Choices program, after it gave its green check mark to sugary cereals.