Wild West in Washington DC: Nutrition Labeling as an Example

This is a guest post by Richard Perlmutter, MS.

One of the most frequently observed claims on food and beverage packaging is “all natural”. It is a term that is supposed to be subject to regulatory oversight.

Two federal agencies are involved: the Food and Drug Administration (FDA) which regulates almost all food except food containing meat and poultry, and the Food Safety and Inspection Service (FSIS) which regulates most meat and poultry containing food. This includes prepared frozen items such as chicken and beef pot pies, fried chicken, and meat based dinner entrees.

The divergent approaches taken by the two agencies is the subject of this post

The FDA Way Is No Way
FDA regulations prohibit an “all natural” claim for foods and beverages containing artificial colors and flavors. Those are the only clear cut regulations the agency has for “natural” claims. The agency has not released a more inclusive policy statement, claiming that the issue is “complex”, and that the Agency spends its limited resources on achieving more important goals like insuring the safety of the food supply.

To its credit, the agency cited Alexia Foods (a Con Agra subsidiary) in November, 2011 for making an improper “all natural” claim for a product containing disodium dihydrogen pyrophosphate. (See the January, 2012 newsletter for more information.) The additive helps to maintain a light color in foods that have a tendency to darken.

The Agency’s warning letter to Alexia Foods included these words:

the FDA “considers the use of the term ‘natural’ on a food label to be truthful and non-misleading when nothing artificial or synthetic… has been included in, or has been added to, a food that would not normally be expected to be in the food.”

The pyrophosphate ingredient was clearly an unnatural ingredient. But
what about less clear cut cases, like corn syrup or high fructose corn syrup, or ingredients derived from genetically modified organisms (GMOs)? Unfortunately the FDA does not provide guidance.

But lawyers are not fearful of this unresolved situation, and have teamed with clients to sue food companies for making “natural” claims. And the poor courts don’t know how to respond. Recently the judge in one case was quoted as saying “any referral to the FDA would be futile”. Normally FDA has pre-emption, meaning the court would defer to the FDA, because it has primary jurisdiction. But the judge was aware that the FDA has not shown an interest in resolving the issue of “natural” for many types of ingredients. In this instance, the plaintiff is suing a food company for making an “all natural” claim for a line of products that contains high fructose corn syrup, high maltose corn syrup, and/or maltodextrin.

Even more recently, another court decided to offer the FDA an opportunity to respond. It recommended giving the FDA six months to resolve an “all natural” claim for a food with ingredients from genetically modified organisms. The presiding judge said there is a “gaping hole in the current regulatory landscape for ‘natural’ claims and GMOs”. But “deference to the FDA’s regulatory authority is the appropriate course”.

The FSIS Way is a Better Way
The Food Safety and Inspection Service pre-approves all labels for meat and poultry products that make claims, including the claim “all natural”. To my knowledge no one sues the manufacturer of a meat or poultry containing food for an improper “all natural” claim. Doing so is equivalent to suing the U.S. Department of Agriculture, which is home to the FSIS.

Questions may be submitted on several FSIS website portals. One even has the welcoming name http://askfsis.custhelp.com/. It is a simple matter to inquire about the “natural” status of a food ingredient prior to submitting for approval a label containing an “all natural” claim.

Another difference between the two agencies is in favor of the FDA. That agency is very transparent. The warning letter to Alexia Foods is posted on its website for all to see. But there is no way to access the answers that FSIS provides to those who submit inquiries. Nor does FSIS make available lists of ingredients affirmed as “natural”, and rejected as” natural”. One must submit the question, and wait for a response. By the way, the wait time is usually about one week.

The Agency indicates that use of certain “natural” ingredients in products may cause the products to not be “natural”. It gives the example of the natural ingredient beet powder. If used to color a product that would not normally be expected to contain beet powder, then the product could not be designated as “natural”.

Perhaps situations like this explain why the FSIS does not provide lists of ingredients that are or are not “natural”.

In conclusion

The FDA is doing a disservice to its constituency by not passing judgment on the “natural” status of ingredients. Since the FSIS does, surely the FDA can too.

“All natural” is being defined on a piecemeal basis depending on how various legal actions play out. That is not a good way to determine what the term means.

Richard Perlmutter is the owner of Abington Nutrition Services LLC which prepares nutrition labeling for products manufactured by food and beverage companies. He also takes an interest in seeing that government nutrition policy is in line with nutritional science.