On May 20, 2016, FDA finalized an updated Nutrition and Supplement Facts Label Rule, over two years after proposing several rule updates. This update will require manufacturers to make both visual and substantive changes to their nutrition labels.  Visual changes–including increasing the type size for “calories” and “servings”–may be less onerous for manufacturers than some other new requirements.  Substantive changes range from the declaration of grams and percent daily value for “added sugars” to the required inclusion of grams and daily value percentage of Vitamin D and potassium.

Additionally, FDA has changed its requirement for serving size labeling in order to conform to the Nutrition Labeling and Education Act. The Act requires that serving sizes be based on what people actually eat.  Noting that what and how much people eat and drink has changed since the last serving size requirements were published in 1993, labeling for certain multi-serving food products may change dramatically.  For example, on packages that are between one and two servings, such as a 20-ounce soda, manufacturers will be required to label the calories and other nutrients as one serving.  Moreover, “dual column” labels have been adopted to indicate both “per serving” and “per package” calorie and nutrition information.

Over 800,000 food products currently display the Nutrition Facts label. While some manufacturers focus on reformulation, others will surely pursue litigation.  This will leave courthouses nationwide with the task of deciding, among other issues, what constitutes “added sugar.”  FDA has already attempted to head-off “added sugar” litigation by clarifying that “[s]ugars from…fruit juices can be…stripped of nutrients such that they are essentially sugars,” and clarifying that “evaporated can juice” is sugar.  But these clarifications may do little to prevent filings.

The Nutrition Facts label regulations apply to packaged foods except certain meat, poultry, and processed egg products, which are regulated by the U.S. Department of Agriculture’s Food Safety and Inspection Service. Manufacturers with more than $10 million in annual food sales have until July 26, 2018 to implement the new labels.  Those with less than $10 million in annual food sales will have an additional year to comply with the new regulation.

We will continue to monitor the rollout of the new Nutrition Label rules. Additional information on this new regulation is available on the FDA’s website.