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Attorney: ‘Slapping another undefined term on packages that could be attacked legally’ is risky

'GoCleanLabel certified' scheme rolls out, but what does it mean?

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By Elaine Watson+

13-Jun-2017

'GoCleanLabel certified' scheme rolls out, but what does it mean?

A new 'clean label' certification scheme has been launched in the US market as the concept of ‘clean’ eating continues to gain traction. But will CPG brands embrace the ‘Go Clean Label Certified’ logo, and are there risks to using a term that lacks a clear legal definition on food packaging?

Initially, Chicago-based Go Clean Label (launched in summer 2016) was designed as a web-based resource where harried food industry professionals could quickly determine whether an ingredient met the ‘clean label’ criteria of influential food retailers and foodservice brands. And that’s still its primary function right now. But it is also beginning to evolve into something beyond that, co-founder Theresa Cantafio told FoodNavigator-USA.

“[Founder] Brian [Vogt] speaks to hundreds of food companies and the #1 question he kept getting was: 'What is clean label? Is there a definitive guide that we can follow when all of the key influencers have different policies?' And he thought what if we could just have a website with a search bar where you can look up an ingredient, find out what it is, and find out if it is considered clean label, and if so, by which key influencers  [Trader Joe’s, ALDI, H.E.B., Whole Foods, Panera, Kroger]? So we launched a site in summer 2016 and people started bookmarking it.

“If the important clean label influencers have not [yet] taken a stand on a particular ingredient [ie it isn’t on their published lists of unacceptable ingredients] then we will say it ‘may’ not be clean label, but we don’t take a position on it.

"We try to provide as much information as possible where people can learn more about that ingredient, so that we are a one stop shop when it comes to clean label inquiries.

“But once we get enough brand awareness and recognition, we are hoping to host a summit with the key brands and grocery chains and come up with an objective definition of clean label so everyone is on the same page."

The brainchild of Brian Vogt (CEO of ingredients supplier and consultancy firm Brisan) and Theresa Cantafio (who heads up marketing and business development at Brian and has a background in food science, development, marketing and consultancy), Go Clean Label  was launched in July 2016. 

A self-fulfilling prophecy?

Asked whether - as a food scientist - she had any qualms about promoting the notion of ‘clean’ labels (with its implication that ingredients on retailer blacklists are ‘dirty’ imposters that don’t belong in food products), Cantafio said: “We’re not taking a position [on whether the ingredients are good or bad], we’re just making information more accessible to people.”

The Go Clean Label logo

But don’t such lists inevitably demonize safe and legal ingredients and become a self-fulfilling prophecy?

“We've thought about this a lot, but this trend is here to stay," said Cantafio. "We also take the opportunity to educate if there are misunderstandings about ingredients such as carrageenan and autolyzed yeast extracts," she added.

The Go Clean Label certification scheme 

As for the certification scheme, a more recent development, a handful of brands including Planet Fuel Organic Juice  have now gone through the certification process, while Cantafio claimed leading packaged food brands have also expressed an interest in signing up.

“These big companies move at glacial speed, but we’ve had a lot of interest from Fortune 100 and Fortune 500 companies and we’re excited about where we are headed over the next 12 months.”

The criteria are not published, although Cantafio explained that they are based on a combination of retail/industry 'unacceptable ingredient' lists (Whole Foods, Kroger, Panera etc) but are also mindful of some of the processing methods, solvents, incidental additives and other ingredients that have been the subject of 'natural' lawsuits over the years and will also factor in consumer research and other criteria as they evolve. 

“We’re very aware of these issues, and we are following food litigation trends very closely because the word 'clean' is so subjective. We talk to consumers and factor in consumer views into our criteria [so if a plaintiff’s attorney were to challenge the clean label certification claim, it has consumer data to support them]. We want consumers and food companies to trust in our definition and that only comes from being super-collaborative.

"And we know that clean label is going to go beyond the label [and the spec sheet], so the criteria will evolve and there will be tiers of clean label in future. The future of clean label we believe is not just about lists of ingredients, but having a clean conscience."

 

Screenshot from the Go Clean Label website on the sweetener sucralose

Today, participating brands fill out an inquiry form and sign a license agreement, and then undergo a product evaluation. Should products meet the criteria, they can use the Go Clean Label certified logo on their packaging, website and marketing materials. There’s a flat certification fee, then tiered costing based on the number of products each company is pursuing.

On average, the certification process takes 1-3 months depending on the attributes of partners’ products and how quickly firms submit the documentation for product evaluations, she said.

Certification is good for 12 months

Right now, manufacturers send specification sheets to Go Clean Label , which focus on what’s on the ingredients list, but in future the program is likely to get more complex, with different tiers and rankings and broader set of criteria expanding to production methods, sustainability and even animal welfare, predicted Cantafio, who says the logo is deliberately only good for 12 months because perceptions of what is ‘clean label’ today may change in 12 months and companies need to stay relevant.

“People in the industry will say that we’re hearing whispers about this or that ingredient so we can say to clients, be mindful that an ingredient you are using might not be considered clean label in 12 months’ time, even if it’s not on an industry list yet."

Take stevia, she said. Right now, it's considered clean label, but in future, this could change depending on the level of scrutiny over different extraction and purification techniques (fermentation, enzymatic modification) and sourcing strategies (eg. is the sweetener derived from a leaf or produced via microbial fermentation of, say, sugars?).

Could ‘clean label’ become the next ‘natural’ from a food litigation standpoint?

But could manufacturers adopting this label be opening themselves up to potential litigation, given that the term ‘clean label’ has no legal definition (just like ‘natural,’ which is at the root of hundreds of lawsuits) and can therefore mean whatever a plaintiff’s attorney says a ‘reasonable consumer’ thinks it means?

What if your clean label certified product contains trace levels of pesticide residues that consumers might not consider ‘clean?’ What if it involved genetic engineering at some stage of the production process (right now, the criteria do not touch on genetic engineering and are primarily based on spec sheets supplied by manufacturers)?

Go Clean Label co-founder Theresa Cantafio: "We want consumers and food companies to trust in our definition and that only comes from being super-collaborative.”

Might manufacturers be better off simply removing potentially problematic ingredients from formulations and being as transparent as possible, rather than making new claims on pack that could open them up to fresh legal threats?

Attorney: ‘Slapping another undefined term on packages that could be attacked legally’ is risky

Bruce Silverglade, principal at law firm Olsson Frank Weeda Terman Matz PC, told FoodNavigator-USA: “The term 'clean label' has not been defined by the FDA and companies using the term do so at their own risk.  

“One can bet that plaintiff class action attorneys will be splitting hairs to find something misleading about the certification term.  

“Food companies seeking credibility with consumers would be better off having their labels checked for compliance with FDA regulations and court decisions interpreting state consumer protection laws than by slapping another undefined term on packages that could be attacked legally.”

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