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Consumer Product Matters A product safety and consumer related regulation and litigation blog

Reexamination of “Healthy” Continues with an FDA Public Meeting in March 2017

Posted in Advertising, Federal Regulations, Food & Drug Administration (FDA), Food and Beverage, Product Class Actions

As we’ve previously reported, FDA has signaled its interest in reviewing the scope and meaning of the nutrient content claim “healthy,” in part as result of a dispute with KIND LLC about label claims for its KIND Bar products. Then last fall FDA released a new guidance document on what constitutes a “healthy” food and proper labeling of such foods, and the Agency simultaneously requested public input on a significant number of questions related to use of this particular claim.

Last week, FDA announced two actions that are intended to further advance this public consultation process for “healthy” label claims. First, it has extended the comment period that was initiated in October with the release of the draft guidance document until April 26, 2017. And it is convening a public meeting to discuss the use of the term “healthy” in the labeling of human food products, in part to further the feedback that may be received during this ongoing comment period. The public meeting will be held on March 9, 2017 from 8:30 a.m. until 5:30 p.m. in Rockville, Maryland.  Persons who wish to attend the meeting in person are encouraged to register online by March 2nd through the meeting webpage. (As we’ve likely mentioned before, these FDA events are first-come, first-served and there is no shortage of anecdotes involving folks not being able to get into the room.)  For those who can’t attend in person or don’t get a coveted seat, the meeting will be live webcast.

As the Agency notes in the formal Federal Register notice of the March 9th meeting, its food labeling experts are looking for participants “to provide information, share experiences, and raise issues specifically related to the nutrient content claim “healthy,” including (but not limited to): “healthy” as a nutrient-based claim, food component-based claim, or both; “healthy” single definition or definition by category; consumer understanding of and responses to the term “healthy”; and when, if ever, the use of the term “healthy” may be false or misleading.”

We similarly urge food manufacturers, distributors, and retailers with a stake in these issues to get involved in this consultation process with FDA. Even if federal agency rulemaking is on hold right now as a result of several orders by President Trump, that will not always be the case, so make sure your voice is heard!