June 03, 2010

FTC Investigation of Ad Claims that Rice Krispies Benefits Children's Immunity Leads to Stronger Order Against Kellogg

FTC News Release: 

Leading cereal maker Kellogg Company has agreed to new advertising restrictions to resolve a Federal Trade Commission investigation into questionable immunity-related claims for Rice Krispies cereal. This is the second time in the last year that the FTC has taken action against the company.

“We expect more from a great American company than making dubious claims – not once, but twice – that its cereals improve children’s health,” said FTC Chairman Jon Leibowitz. “Next time, Kellogg needs to stop and think twice about the claims it’s making before rolling out a new ad campaign, so parents can make the best choices for their children.”

Kellogg has agreed to expand a settlement order that was reached last year after the FTC alleged that the company made false claims that its Frosted Mini-Wheats cereal was “clinically shown to improve kids’ attentiveness by nearly 20%.”


Post by Donna M. Byrne, Professor of Law, William Mitchell College of Law

June 3, 2010 in Health Claims, Labeling | Permalink | Comments (0) | TrackBack

April 30, 2010

FDA Seeking Comments on Calorie and Nutrition Labeling

From the FDA CFSAN website:

April 29, 2010

The U.S. Food and Drug Administration (FDA) has issued a request, in the Federal Register, for data and other information the agency can use as it considers ways to make nutrition information more useful to consumers; for example, on "front-of-pack" labeling (the main display panel on products) and shelf tags in retail stores. The deadline for submitting comments is July 28, 2010.

FDA is particularly interested in receiving data and information on:

    • the extent to which consumers notice, use, and understand nutrition symbols on front-of-pack labeling or shelf tags;
    • results of research that assessed and compared the effectiveness of potential approaches to front-of-pack labeling;
    • graphic design, marketing, and advertising that can contribute to development of nutrition information that is more useful to consumers;
    • the extent to which nutrition labeling affects food manufacturers’ decisions about the contents of their products.

The goal of this request is to make calorie and nutrition information available to consumers in ways that will help them choose foods for more healthful diets – an effort that has taken on special importance, given the prevalence of obesity and diet-related diseases in the U.S. and of increasingly busy lifestyles that demand quick, nutritious food.

Post by Donna M. Byrne, Professor of Law, William Mitchell College of Law

April 30, 2010 in Labeling, nutrition policy | Permalink | Comments (1) | TrackBack

April 19, 2010

FDA Pressured to Combat Rising ‘Food Fraud’

Representatives of the US food industry are saying that the FDA isn’t doing enough to stop the rise of fraudulently mislabeled food. From a March 30, 2010, Washington Post article:

John Spink, an expert on food and packaging fraud at Michigan State University, estimates that 5 to 7 percent of the U.S. food supply is affected but acknowledges the number could be greater. . . .

At the FDA's first public meeting on food fraud last year, groups across the industry complained that it is not doing enough. . . .

Despite growing imports, the FDA inspects just 2 percent of fish coming into the United States from other countries.

The National Seafood Inspection Service, part of the Marine Fisheries Service, routinely examines seafood products for species substitution. It issued a report finding that over a nine year period, between 1988 and 1997, the samples they took showed that an overall 34% of all seafood products tested was mislabeled.

Worse yet, researchers at the University of North Carolina at Chapel Hill conducted a study on fish sold as red snapper. They concluded that between 60% and 94% of the fish sold as red snapper in the US are mislabeled.

Thank you to William Mitchell College of Law student Hiep Phung for preparing this post.  Mr. Phung is a student of Professor Donna M. Byrne.


April 19, 2010 in Labeling | Permalink | Comments (0) | TrackBack

April 15, 2010

New Health Care Legislation Affects Restaurants' Nutritional Information Requirements

The recently passed health care legislation includes a new requirement regarding nutritional information for fast food items. The new requirements come as a victory for people who have been advocating more accountability for restaurants who serve fast food. According to an ABC News article:

. . . The new requirement is buried deep inside the health care reform that President Obama just signed into law. . .It requires all dining chains with 20 outlets or more to put calorie counts on their menus.

These developments have been championed by many, including Iowa Senator Tom Harkin who voted for the bill and is quoted in the article:

 . . . As more and more consumer become aware of choices, they will start making the healthy choice. . .more and more people are going to start eating salads at McDonalds than ever before.

Critics say that although restaurants with less than 20 outlets are exempt from the rule, it is a scary sign that the federal government is moving closer and closer to policing small restaurant operations. According to Didier Durand, chef and head of an organization of independent restaurants aimed at keeping ‘police out of the kitchen’:

 . . . Members [of Durand’s organization] are fed up with encroaching government regulation. . . “They want to police our kitchen, I want the police on the streets, Durand said. “In my kitchen, I put a pinch of that, a little of this, just never the same, so I think that will never be accurate.”

Although these concerns are substantial and illustrate a fear of too much government interference in restaurant operations, studies have shown that nutrition requirements on restaurant food can lead to consumers choosing healthier items. According to a Stanford University Study :

 . . . We find that mandatory calorie posting does influence consumer behavior at Starbucks, causing average calories per transaction to decrease by 6% (from 247 to 232 calories per transaction). Almost all of the effect is related to food purchase as opposed to beverage purchase. . . There is evidence that calorie posting may have caused some consumers to substitute away from Dunkin Donuts (a large competitor) towards Starbucks.

Under the newly enacted legislation, there are specific requirements that must be followed by the restaurant with the hope bringing more knowledge to consumers:

 . . . The restaurant or similar retail food establishment shall disclose. . .a nutrient content statement. . .the number of calories as usually prepared. . .and a succinct statement concerning suggested daily caloric intake. H.R.3962 "Affordable Health Care for American Act, page 1511.

Thank you to William Mitchell College of Law student Nathan Midolo for preparing this post.  Mr. Midolo is a student of Professor Donna M. Byrne.

April 15, 2010 in Labeling, Restaurants | Permalink | Comments (0) | TrackBack

February 03, 2010

Menu Labeling Updates: New Research Shows that Menu Labeling is Curbing Consumers’ Caloric Intake – and also Leading Major Restaurant Chains to Offer Healthier Menu Options

This is a guest post by Kate Armstrong, Staff Attorney, Public Health Law Center, William Mitchell College of Law.

According to two recent studies, nutrition labeling on menus in chain restaurants is leading consumers to make lower-calorie menu selections for themselves and for their children. 

The first study, released in early January 2010, was conducted by the Stanford Graduate School of Business.  The Stanford study, Calorie Posting in Chain Restaurants, focused on the impact of mandatory calorie posting on consumers’ purchasing decisions using sales data from Starbucks stores in New York City, where calorie labeling has been required by city regulation since April 2008.  It found that Starbucks consumers began switching to lower-calorie food options after menu labeling was required, resulting in average calories per transaction falling by six percent (6%).

From an Atlantic article about the Stanford study (which also references two complementary studies conducted by the NYC health department and researchers at Yale University):

The Stanford study, which compared data from Starbucks stores in New York City against stores in Boston and Philadelphia, where calorie-labeling laws are going into effect (they did on January 1 in Philadelphia, and will this November in Boston) is the first widely noted sign that people do change their ordering behavior when they see calorie counts—though not the first, as New York City health department preliminary studies, and a new study at Yale, published last month, are showing. Starbucks customers reduced calories in their food (but not their drink) orders by 6 percent overall and, more dramatically, by 26 percent if they had previously been ordering high-calorie Starbucks items. Starbucks profits didn't decrease—an answer to initial fears from food companies over labeling laws. But, unreassuringly for fast-food chains, sales at Starbucks stores within 100 meters of Dunkin Donuts stores increased by an average of three percent.

The second study, published in the January 25, 2010, online version of Pediatrics, was conducted by researchers at the University of Washington and the Seattle Children’s Research Institute.  The researchers used McDonald’s menus and looked at how parents reacted to nutritional information when making fast food selections for their children.  They found that when nutritional information is available on fast food restaurant menus, parents are more apt to pick lower-calorie foods for their children.

From a BusinessWeek article on the study, quoting lead researcher Dr. Pooja Tandon:

"When parents are provided with calorie information they chose about 100 calories less [per meal] for their 3- to 6-year-old child compared to parents who didn't have that information," said lead researcher Dr. Pooja Tandon, a graduate fellow in the department of general pediatrics at the University of Washington in Seattle.

Finally, the Wall Street Journal notes that local and state menu labeling legislation is leading several national restaurant chains to reformulate existing menu items to make them healthier, and to introduce new, lower-calorie menu options.  While national restaurant chains say that product reformulation is driven by customer demand for healthier options, it is also likely motivated by pending national menu labeling legislation:

The restaurant chains say the low-calorie shift was driven by customer demand rather than impending legislation. But providing calorie counts now will help them get ahead of a proposed federal law calling for chains with 20 or more restaurants to post calorie information on menus and menu boards.  The proposed menu labeling requirements are part of health care legislation being debated in Congress.

Click here for the proposed national menu labeling legislation (see Section 4205, Nutrition Labeling of Standard Menu Items at Chain Restaurants) contained within the Senate health care reform bill, The Patient Protection and Affordable Care Act, passed in the Senate on December 24, 2009.

Although national menu labeling legislation is packaged within the larger – and now up-in-the-air health care reform bill – it is still anticipated to pass this year, whether as part of national health care reform or as stand-alone legislation.

Post by Donna M. Byrne, Professor of Law, William Mitchell College of Law

February 3, 2010 in Labeling, Obesity, Restaurants | Permalink | Comments (1) | TrackBack

January 31, 2010

Timothy D. Lytton: Guest Blog Series on Front-of-Package labeling on Fooducate

Timothy D. Lytton (Albany Law School) has published a series of three articles on Fooducate Blog.

Regulating Front-of-Package Nutrition Labels, Part 3 of 3: Objections to the Imposition of a Single FDA Scheme

In my previous posts I have proposed that the FDA regulate front-of-package nutrition labels by better enforcement of existing regulations and by setting minimum standards for labels that rate the overall nutritional value of foods. By contrast, the Center for Science and the Public Interest as well as the Fooducate Blog have advocated that the FDA develop and impose on the food industry “a simple, uniform science-based system [that] would bring consistent and reliable information to the marketplace and help consumers choose more healthful diets.”

However, the high level of complexity involved in designing nutritional rating systems gives rise to two reasons to prefer a regulatory approach that merely sets minimum-standards. . . .

Here are links to Professor Lytton's earlier two posts on Fooducate Blog:

Regulating Front-of-Package Nutrition Labels, Part 1 of 3: Better Enforcement of Existing Standards

Regulating Front-of-Package Nutrition Labels, Part 2 of 3: Developing New Minimum Standards for Complex Rating Schemes

Post by Donna M. Byrne, Professor of Law, William Mitchell College of Law

January 31, 2010 in Labeling, marketing | Permalink | Comments (0) | TrackBack

January 29, 2010

Timothy D. Lytton publishes Signs of Change or Clash of Symbols? FDA Regulation of Nutrient Profile Labeling

Timothy D. Lytton (Albany Law School) has  published Signs of Change or Clash of Symbols? FDA Regulation of Nutrient Profile Labeling, Health Matrix, Vol. 19, No. 2, 2010.  The article is available for download on SSRN.

A new generation of food labels uses symbols and ratings on the front of packages and on supermarket shelves to indicate a product’s nutritional value. Proponents of these new labels assert that they help consumers make healthier dietary choices. Critics contend that the new labels are confusing and misleading. This article argues that, with some minor reforms, the FDA’s existing regulatory framework governing nutrient content claims on food labels is well suited to balance these competing considerations. With regard to the most novel and complex labels - those that rate the overall nutritional value of food products - based on detailed algorithms the article proposes that the FDA provide minimum standards that would prevent fraudulent or misleading claims while allowing for genuine experimentation and competition within the private sector that is likely to advance knowledge in the areas of nutrition and food labeling as a public health strategy.

Post by Donna M. Byrne, Professor of Law, William Mitchell College of Law

January 29, 2010 in Labeling | Permalink | Comments (0) | TrackBack

January 08, 2010

"Digestiv" and alcohol labels

From Bevlog (a really fun blog about alcohol beverage labels!):

Remove the Word “Digestif”

. . .  TTB does not allow any reference to digestif, digestiv or similar. Here is an example of a recent rejection, wherein TTB explains that the term is not allowed, and why. TTB regards it as a therapeutic claim. . . .


Post by Donna M. Byrne, Professor of Law, William Mitchell College of Law

January 8, 2010 in Labeling | Permalink | Comments (0) | TrackBack

December 08, 2009

The most important information on a food label?

The EU is considering uniform nutritional labeling, and a recent study showed that Irish consumers are paying attention.  The traffic light system is fine, merely color coding the nutrient amounts, not so much.

A summary article on Food Navigator.com describes the survey. This is the bit that really caught my attention:

“The main reasons consumers now read food labelling is to look for nutritional and calorific information, whereas in 2002 the key reason to read a label was to check the best before date. This indicates that people are concerned about healthy eating and want to know more about the nutritional aspects of the food they are buying.”

That said, the respondents still cited the use by or best before date as the single most important piece of information on food labels, followed by the list of ingredients and the name of the food.

I'm not even sure why I read food labels these days.  I can't stop myself.  DMB

December 8, 2009 in Labeling | Permalink | Comments (0) | TrackBack

November 27, 2009

Kellogg's discontinues cereal box "Immunity" claims

Kellogg has announced that it will stop using the big banner on the Cocoa Krispies proclaiming that the cereal "helps support your child's immunity." 

Here's a November 5, 2009, article from the Wall Street Journal:
Kellogg: Rice Krispies Won’t Protect Your Kid From Swine Flu

And here's the Kellogg's Press Release

November 27, 2009 in Labeling | Permalink | Comments (0) | TrackBack

October 21, 2009

FDA analyzing front of package labels

Food traffic light The FDA has issued a Dear Industry letter on front of package or point of purchase nutrition labeling.

From the Institute of Food Technologists Weekly:

The U.S. Food and Drug Administration (FDA) said Oct. 20 that it would seek to clear up the confusion caused by a surge of nutritional claims that manufacturers have begun to make on packaged food labels. Point of purchase labeling including Front of Package (FOP) labeling is voluntary information that is intended to convey to consumers the nutritional attributes of a food. Point of purchase labeling often includes symbols that are typically linked to a set of nutritional criteria developed by food manufacturers, grocery stores, trade organizations, and health organizations. The selected nutrients and the nutrient levels required for eligibility vary among the different symbol programs in use.  continue

The graphic above is the traffic light version that has been floating about for some time now.


October 21, 2009 in Labeling, nutrition policy | Permalink | Comments (0) | TrackBack

October 04, 2009

FDA Video Update on Food Allergies

FDA has posted a series of videos for consumers.  Here's the one on Food Allergies:

  Food Allergies: Reducing the Risks (video)

Food allergies can range from merely irritating to life-threatening. FDA is working to ensure that major allergenic ingredients in food are accurately labeled. In this Consumer Update video Felicia Billingslea, FDA Director of Food Labeling and Standards, provides tips to help prevent allergic reactions and explains the difference between food allergies and food intolerance.

October 4, 2009 in Film, food safety, Labeling | Permalink | Comments (0) | TrackBack

October 03, 2009

Dietary Supplement Labeling Guide

Here's a nifty table showing some of the differences between dietary supplement labeling rules and conventional food labeling rules.  The table is presented on Food Label News, an online newsletter by Food Consulting Company, which provides nutritional analysis and labeling advice. From their labeling guide:

A dietary supplement is a product taken by mouth that contains a “dietary ingredient” intended to supplement the diet; “dietary ingredients” include: vitamins, minerals, herbs/botanicals, amino acids, enzymes, organ tissues, glandulars, metabolites, extracts or concentrates. Dietary supplements have many forms: . . .

October 3, 2009 in Labeling, supplements | Permalink | Comments (1) | TrackBack

September 25, 2009

My son just sent me this xkcd cartoon about food labels. Click on the link to view on their website, and be sure to hold your mouse over the picture for the rest of the caption. 

Xkcd oat label

September 25, 2009 in Cartoons, Labeling | Permalink | Comments (0) | TrackBack

August 29, 2009

Testing and Certification for "non-GMO" foods

From the New York Times:

Alarmed that genetically engineered crops may be finding their way into organic and natural foods, an industry group has begun a campaign to test products and label those that are largely free of biotech ingredients. . . .

Hundreds of products already claim on their packaging that they do not contain genetically modified ingredients, but with little consistency in the labeling and little assurance that the products have actually been tested. The new labeling campaign hopes to clear up such confusion.

Read the article here

August 29, 2009 in Biotech, GMOs, Labeling | Permalink | Comments (0) | TrackBack

August 20, 2009

Serving Size for Lollipops

A post on Small Bites blog raises a question about serving sizes:

In one corner, a colorful display of medium-sized “whirly pops” caught my eye.

They were your standard rainbow swirl lollipops (that swirl can be quite hypnotic!).

I grabbed one, turned it around, and could not believe the nutrition label.

The serving size for this single-serve three-ounce lollipop? 

Read the rest of the post

Reference serving sizes are provided in regulations at 21 CFR 101.12

August 20, 2009 in Labeling | Permalink | Comments (1) | TrackBack

August 19, 2009

Study: Allergen Labeling Not Clear Enough

A study recently published online in the Journal of Allergy and Clinical Immunology concludes that better allergen labeling is warranted.  Here's the abstract:

Background The Food Allergy Labeling and Consumer Protection Act became effective January 1, 2006, and mandates disclosure of the 8 major allergens in plain English and as a source of ingredients in the ingredient statement. It does not regulate advisory labels.

Objective We sought to determine the frequency and language used in voluntary advisory labels among commercially available products and to identify labeling ambiguities affecting consumers with allergy.

Methods Trained surveyors performed a supermarket survey of 20,241 unique manufactured food products (from an original assessment of 49,604 products) for use of advisory labels. A second detailed survey of 744 unique products evaluated additional labeling practices.

Results Overall, 17% of 20,241 products surveyed contain advisory labels. Chocolate candy, cookies, and baking mixes were the 3 categories of 24 with the greatest frequency (≥40%). Categorically, advisory warnings included “may contain” (38%), “shared equipment” (33%), and “within plant” (29%). The subsurvey disclosed 25 different types of advisory terminology. Nonspecific terms, such as “natural flavors” and “spices,” were found on 65% of products and were not linked to a specific ingredient for 83% of them. Additional ambiguities included unclear sources of soy (lecithin vs protein), nondisclosure of sources of gelatin and lecithin, and simultaneous disclosure of “contains” and “may contain” for the same allergen, among others.

Conclusion Numerous products have advisory labeling and ambiguities that present challenges to consumers with food allergy. Additional allergen labeling regulation could improve safety and quality of life for individuals with food allergy.

Journal of Allergy and Clinical Immunology 2009, Vol. 124, No. 2, pp. 337-341 “Audit of manufactured products: Use of allergen advisory labels and identification of labeling ambiguities” Authors: M.M. Pieretti, D. Chung, R. Pacenza, T. Slotkin, and S.H. Sicherer

August 19, 2009 in Labeling | Permalink | Comments (0) | TrackBack

August 18, 2009

When Can FDA Regulate Beer Labeling? When the Beer is not a "Malt Beverage"

Generally speaking, the usual food regulators -- FDA and USDA -- do not regulate alcohol beverages.  Most alcohol beverages are regulated by the Alcohol and Tobacco Tax and Trade Bureau (TTB), which is part of the Department of the Treasury (just like the IRS!) 

Last summer TTB issued a ruling explaining that some beverages qualify as "beer" for excise tax purposes even though they are not "malt beverages" subject to TTB jurisdiction.

Section 5052(a) of the IRC (26 U.S.C. 5052(a)) defines the term “beer,” for purposes of Chapter 51, as “beer, ale, porter, stout, and other similar fermented beverages (including saké or similar products) of any name or description containing one-half of 1 percent or more of alcohol by volume, brewed or produced from malt, wholly or in part, or from any substitute therefor.” Essentially the same definition appears in the TTB regulations at 27 CFR 25.11. In addition, with reference to what may be a substitute for malt, § 25.15(a) of the TTB regulations (27 CFR 25.15(a)) states that “[o]nly rice, grain of any kind, bran, glucose, sugar, and molasses are substitutes for malt.”

The Federal Alcohol Administration Act, however, gives TTB authority to regulate "the labeling and advertising of wine, distilled spirits, and malt beverages."

Since the Internal Revenue Code definition of "beer" is broader than just "malt beverages," there are some beverages subject to the excise tax, but over which TTB was not given authority.

Accordingly, a fermented beverage that is brewed from a substitute for malt (such as rice or corn) but without any malted barley may constitute a “beer” under the IRC but does not fall within the definition of a “ malt beverage” under the FAA Act. Similarly, a fermented beverage that is not brewed with hops may fall within the IRC definition of “beer” but also falls outside of the definition of a “malt beverage” under the FAA Act. (TTB Ruling 2008-3)

So, FDA has issued Draft Guidance for labeling of those "beers" that are not "malt beverages":

Guidance for Industry: Labeling of Certain Beers Subject to the Labeling Jurisdiction of the Food and Drug Administration; Draft Guidance

From the Background section:  Alcoholic beverages are regulated by FDA under the FFDCA, which includes "articles used for food or drink" in the definition of "food." 21 U.S.C. 321(f). As such, alcoholic beverages are subject to the FFDCA adulteration and misbranding provisions, and implementing regulations, related to food. For example, manufacturers of alcoholic beverages are responsible for adhering to the registration of food facilities requirements in 21 CFR part 1 and to the good manufacturing practices in 21 CFR part 110. However for the labeling of alcoholic beverages, as reflected in the 1987 Memorandum of Understanding (MOU) between FDA and TTB's predecessor agency (ATF) (Ref. 2), TTB is responsible for the promulgation and enforcement of regulations with respect to the labeling of distilled spirits, wines, and malt beverages pursuant to the FAA Act. In TTB Ruling 2008-3, dated July 7, 2008, TTB clarified that certain beers, which are not made from both malted barley and hops but are instead made from substitutes for malted barley (such as sorghum, rice or wheat) or are made without hops, do not meet the definition of a malt beverage under the FAA Act.3 Accordingly, TTB stated in its Ruling that such products (other than sake, which is classified as a wine under the FAA Act), are not subject to the labeling, advertising, and other provisions of the TTB regulations promulgated under the FAA Act.

read more


August 18, 2009 in Labeling | Permalink | Comments (0) | TrackBack

August 14, 2009

Third Circuit Holds Snapple Suit Not Preempted: Stacy Holk v. Snapple Beverage Corp.

The Third Circuit Court of Appeals has ruled that a consumer action against the makers of Snapple is not preempted by the Food Drug and Cosmetic Act.

The case is Stacy Holk v. Snapple Beverage Corp, 08-3060, 3rd U.S. Circuit Court of Appeals (Philadelphia).  Here's an article about it from The American Lawyer Litigation Daily:

Third Circuit Rejects Preemption Defense and Reinstates Consumer Fraud Class Action Against 'All Natural' Snapple 
By Alison Frankel

August 13, 2009 -- We here at the Litigation Daily regard Snapple diet lemon iced tea as pretty much the elixir of life. We drink it by the bucketful. We like the way it tastes, and, frankly, we've always been amused by the company's cheeky attitude and advertising. But apparently not everyone is as charmed as we are. In a 30-page ruling on Wednesday, a three-judge panel of the U.S. Court of Appeals for the Third Circuit revived a New Jersey statewide class action against Snapple, finding that federal regulation does not preempt consumer fraud claims involving Snapple's "all natural" labelling.

August 14, 2009 in Labeling | Permalink | Comments (1) | TrackBack

July 15, 2009

Politics of kosher hot dogs

This piece from the Baltimore Jewish Times has some interesting background on the history of the hot dog.  I only eat non-meat hotdogs, myself, but kosher certification symbols (like all voluntary label symbols) get me excited.  Thanks to Steven H. Sholk for sending this my way:

Hebrew National & Kosher Politics
What’s kosher about answering to a higher authority?

. . . . One of the oldest forms of processed food, the common sausage can be traced as far back as the Roman Empire. (It was mentioned in Homer’s “Odyssey” in the ninth century B.C.)

According to food historians, the edible “dachshund” or “little dog” was created in the late 1600s by Johann Georghehner . . .

July 15, 2009 in Labeling, Religion | Permalink | Comments (0) | TrackBack