BLOG POST

Well Done

YOUR SOURCE ON FOOD LITIGATION AND REGULATION

The Food and Drug Administrant (FDA) on Thursday announced the details of its planned delay to require manufactures to update Nutrition Facts and Supplement Facts labels on food packaging.[1] The finalized rule extends the compliance dates for manufactures with $10 million or more in annual food sales from July 26, 2018, to January 1, 2020, while compliance dates for manufactures with less than $10 million in annual food sales will move from July 26, 2019, to January 1, 2021.[2] As we previously discussed, FDA had announced last year that it was extending the compliance date to an undetermined time around the same time FSIS’s Nutrition Facts Panel proposed rule was placed on the list of “inactive” regulations by the White House Office of Management and Budget.

FDA explains in the final rule that the additional time will “help ensure that all manufacturers covered by the final rules have guidance from FDA to address, for example, certain technical questions [FDA] received after publication of the final rules, and that [manufacturers] have sufficient time to complete and print updated Nutrition Facts labels for their products before they are expended to be in compliance with the final rules.” Notably, FDA’s announcement came on the same day the US Department of Agriculture (USDA) published its much-awaited proposed rule establishing a National Bioengineered Food Disclosure Standard.[3] UDSA’s labeling disclosure requirements will potentially require additional modifications to some types of labels. Therefore, FDA’s extension of the Nutrition Facts labels may more closely align the two compliance dates and possibly eliminate the need to change the labels twice.

As a reminder, FDA issued final rules on May 27, 2016, to implement changes to the nutrition and dietary supplement labeling and serving size regulations.[4] Some of the major provisions include:

  • removing the declaration of “Calories from fat”;
  • requiring the declaration of the gram amount of “Added Sugars” in a serving of a product, establishing a Daily Reference Value (DRV), and requiring the percent Daily Value (DV) declaration for added sugars;
  • changing “Sugars” to “Total Sugars” and requiring that “Includes ‘X’ g Added Sugars” be indented and declared directly below “Total Sugars” on the label;
  • updating the list of vitamins and minerals of public health significance (e.g., requiring the declaration of vitamin D and potassium, and making voluntary the declaration of vitamins A and C);
  • updating certain reference values used in the declaration of percent DVs of nutrients on the Nutrition Facts and Supplement Facts labels;
  • revising the format of the Nutrition Facts label to increase the prominence of both the term “Calories” and the calories information;
  • removing the requirement for the footnote table listing the reference values for certain nutrients for 2,000 and 2,500 calorie diets; and
  • requiring the maintenance of records to support the declarations of certain nutrients under specified circumstances.

For more information and analysis, please see our LawFlash on this topic.



[1] Food & Drug Admin., FDA Extends Nutrition Facts Label Compliance Dates (May 3, 2018).

[2] Food Labeling: Revision of the Nutrition and Supplement Facts Labels and Serving Sizes of Foods That Can Reasonably Be Consumed at One Eating Occasion; Dual-Column Labeling; Updating, Modifying, and Establishing Certain Reference Amounts Customarily Consumed; Serving Size for Breath Mints; and Technical Amendments; Extension of Compliance Dates, 83 FR 19619 (May 4, 2018).

[3] National Bioengineered Food Disclosure Standard, 83 FR 19860 (May 4, 2018).

[4] Food Labeling: Revision of the Nutrition and Supplement Facts Labels, 81 FR 33742 (May 27, 2016).