Yesterday, the Food and Drug Administration (“FDA”) announced guidance regarding using the term “healthy” in the labeling of human food products. As background, the FDA issued final rules updating the Nutrition Facts label and serving size information for packaged foods this past May. Those rules require that the Nutrition Facts label include changes in the individual nutrients that must be declared and also changed the daily value of other individual nutrients. In light of those changes, the FDA is now recommending to the industry that any food which claims “healthy” on its package meet the low fat requirement, provided that: (a) the amount of mono- and polyunsaturated fats are declared on the label; and (b) the amounts declared constitute the majority of fat content.

Additionally, the current requirement that “healthy” products must contain at least 10% of the daily value (“DV”) per serving of vitamin A, vitamin C, calcium, iron, protein or fiber, is now modified such that companies may make a “healthy” claim if the food instead contains at least 10 percent of the DV per serving of potassium or vitamin D.

TAKEAWAY: The use of the word “healthy” is frequently used in advertising, and is currently being litigated. Although the FDA guidance is for packaging only, advertisers may wish to use this guidance when making “healthy” claims about their products in advertising.