Last month, I wrote about the FDA’s invitation to the public to weigh in on whether and how the FDA should define the term “natural” as it relates to food product labels and how the FDA should determine the appropriate use of the term. The FDA has already received over 2,200 comments, demonstrating the public’s hunger for a clearer understanding of what qualifies as “natural” food and food ingredients. Comments thus far range from, “If you can kill it, pick it, grow it, then it is natural” to “The term natural means nothing and it should not be allowed on packaging at all.” On Wednesday, December 2, there were two developments on the food labeling front that are worth mentioning.
First, the Natural Products Association (“NPA”) submitted a letter to the FDA requesting a 90-day extension of the public comment period, which would push the original deadline out to May 10, 2016. “Given the importance of this issue to the industry we believe additional time is needed to allow sufficient stakeholder response,” said Dan Fabricant, Executive Director and CEO of NPA. He continued, “NPA strongly supports and welcomes this effort by the FDA to define what can be labelled natural, because millions of Americans are buying products they think might be natural but are really not.”
Second, and perhaps more importantly, the Grocery Manufacturers Association (“GMA”) announced a new SmartLabel technology initiative which, according to a news release, “enables consumers to get additional details about products by scanning a bar code or doing an online search to reach a landing page with information on ingredients and other attributes of a wide range of food, beverage, pet care, household and personal care products.” This will give customers instantaneous access to product information beyond the information that appears on physical labels. Reportedly, more than 30 major companies have already committed to participating in the initiative, and as many as 30,000 products are projected to be using SmartLabel by the end of 2017.
GMA also noted that many companies using SmartLabel will likely voluntarily disclose information on whether food products do, may, or do not contain genetically modified organisms (“GMOs”). Currently, food product manufacturers are not required to include information on GMO content on food labels (this goes to the heart of the controversy over “natural” labeling), and many of them would like to keep it that way. According to The Wall Street Journal, “Industry officials say mandatory labeling would be confusing and costly, and that companies should be allowed to do so voluntarily. The SmartLabel—which allows but doesn’t require companies to reveal GMO ingredients—is a step toward doing that.” While some companies might be reluctant to voluntarily disclose GMO information using SmartLabel technology, doing so might reduce the pressure on Congress to mandate such information be included on physical labels, which the manufacturers fear would be perceived as a warning. Voluntary disclosure could also have the added benefit of making it more difficult for plaintiffs to argue in court that labels are misleading.
At the very least, GMA and other groups “are urging Congress to pass legislation setting a uniform national standard for GMO labeling to replace a patchwork of state labeling mandates that vary from state to state.” Could a broad shift towards voluntary disclosure of GMO information using SmartLabels impact the FDA’s decision to define “natural” and how the term should be used? We will keep an eye on further developments in the ongoing food labeling war and report back.