Recently, the U.S. Food and Drug Administration (FDA) sought comment from the public concerning expanding the use of health claims for certain foods. A health claim describes the relationship between a positive nutrient in a food and a beneficial effect on a disease or health condition. The FDA sought comment on allowing health claims for foods that have a relatively small amount of a positive nutrient and on permitting health claims for foods that have both a positive nutrient and a problematic nutrient. In response to this request, the Federal Trade Commission’s Bureau of Consumer Protection (FTC) filed a comment on July 30, 2004 encouraging the FDA to consider allowing truthful, non-misleading health claims for more foods.
According to the FTC, permitting such claims would “help consumers make informed dietary choices and promote competition among manufacturers to develop and market healthier food products.” The FTC staff recommended that the FDA make its regulatory decisions consistent with the results of consumer research in regards to ways that health claims may be made for foods without deceiving consumers.
The FTC commented that the FDA should consider allowing health claims for foods that satisfy a nutrient density standard. This would allow health claims for some foods that are currently precluded but contribute significantly to a healthy diet. Furthermore, the FTC recommended that the FDA should consider health claims on a case-by-case basis for foods that do not meet either the minimum nutrient contribution requirement or a nutrient density standard, if such claims could help consumers make decisions about healthier substitutes for foods in their diets.
Moreover, the FTC recommended that the FDA should conduct consumer research to determine whether consumers take away from health claims for foods with a problematic nutrient the claim that the food is healthful in all respects. If so, then the FDA should consider mandating the use of disclosures to address the claim. These disclosures should be consistent with the results of consumer research on ways to provide qualifying information which prevents consumers from being mislead. Ultimately, such disclosures would allow consumers to receive truthful and non-misleading information aiding them in selecting foods for their diets.
Revising the FDA’s regulations to allow food marketers to provide greater and more accurate health-related information will assist consumers in selecting a wider range of foods as they attempt to construct healthful diets.
For more information on FDA and FTC regulatory matters, please contact Rakesh M. Amin at (312) 327-3382 or Rakesh@amin-law.com.