Loopholes in the US FTC Guidelines for Health Claim Labeling

The Australian and New Zealand bi-national government agency FSANZ* has finally taken the reigns from the Australian Food and Grocery Council and made a crucial amendment to the Food Standards Code. After 10 years of deliberations, on 18 January 2013, the new Standard 1.2.7 of the Australian New Zealand Food Standards Code became law. Amongst other things, this Standard dictates that eligibility criteria must be met for a food or beverage to qualify for the making of a health claim. That is, henceforth, for a company to make a health claim about a food or beverage, the food or beverage will have to meet a basic Nutrient Profile Score (NPS). This prevents a fast food company from fortifying its high saturated fat, high calorie french fries with vitamin D and labeling the french fries as being “good for healthy bones and teeth”. It might seem unnecessary, but food and beverage manufacturers are using these claims because the simple fact is that people are often either:

a) ignorant to the nutritional content of the foods and beverages they consume (because they are too busy or otherwise disinclined to read the nutritional panels), or

b) willing to overlook the negative health effects of the foods and beverages they consume if they are given cause for believing that there are positive health benefits that justify them in choosing to consume those foods and beverages.

In order for a health claim to be made, the NPS for foods (other than beverages, cheese, oil, margarine and butter) must be less than 4. The NPS is calculated by taking the baseline score (based on energy, saturated fatty acids, sugar and sodium content) and deducting points for fruit & vegetable, protein and fiber content.


A similar regimen exists in the United States. Part 101 of the US Federal Trade Commission Code of Federal Regulations states that “No expressed or implied health claim may be made …, unless: ....None of the disqualifying levels identified in paragraph (a)(4) of this section is exceeded in the food”. The disqualifying levels are the levels of total fat, saturated fat, cholesterol, or sodium in a food. These levels are 13.0 grams (g) of fat, 4.0 g of saturated fat, 60 milligrams (mg) of cholesterol, or 480 mg of sodium, per reference amount.


This leaves two major loopholes in the US FTC Federal Regulations, and it is my contention that the US FTC Federal Regulations are due for an overhaul in line with the amendments made to the Australia New Zealand Food Standards Code.


LOOPHOLE #1
As mentioned, the Australia New Zealand Food Standards Code evaluates a food or beverage based on a comprehensive formula that trades off the more negative characteristics of a food or beverage (the sodium content for example) with the positive characteristics of that food or beverage (its fiber content for example). In this way, the overall nutritional value of the food or beverage is assessed and considered when determining whether that food or beverage is eligible for a health claim. No one characteristic of the food or beverage is necessarily determinative.


In contrast, the US FTC Federal Regulations do not account for a combinatorial evaluation of a food or beverage. Each nutrient is considered in isolation. An excess of any one of total fat, saturated fat, cholesterol or sodium results in an automatic disqualification from that food or beverage being eligible for health claim labeling.


To give an example, the reference amount for nuts is 30 grams (that is, the amount of nuts a consumer is expected to consume in a normal serving size is 30 grams). A 30 gram serving of raw almonds comprises about 15 grams of fat. But the US FTC Federal Regulations state that the disqualifying level of fat is 13 grams. So, fat is a disqualifying nutrient for raw almonds, and it is not possible for US manufacturers to make health claims about raw almonds. This seems odd, since raw almonds are rich in vitamins, minerals, protein and anti-oxidants, and are recommended by the American Heart Association as a healthy snack. In contrast, a processed product of dubious health benefits, but which flies just under the radar in terms of fat, saturated fat, cholesterol and sodium composition, qualifies to be labeled with a health claim.


Anyone who has studied health and nutrition realizes that the various components of a food or beverage have a synergistic effect. It is unrealistic to consider any element of a food or beverage in isolation. The complex nature of nutrition should be reflected in the evaluation system laid out in the US FTC Federal Regulations. A more comprehensive formula, such as that outlined in the Australia New Zealand Food Standards Code, should be adopted by the US Federal Trade Commission.


LOOPHOLE #2
As mentioned, the Australia New Zealand Food Standards Code takes into account the sugar content of a food or beverage when evaluating the NPS of that food or beverage. The US FTC Federal Regulations do not. This allows sugary foods and beverages, such as candy and sodas, to escape the safeguards intended by the Federal Regulations. There is no automatic disqualification preventing health claim labelling on a food or beverage product that is basically pure sugar.


This has resulted in some major issues. For example, for years Vitamin Water has been portrayed as a healthy drink, with labeling such as “vitamins + water + all you need”, despite the fact that there are 33 grams of sugar in every bottle. The American Heart Association recommends that adult women intake only 20 grams of sugar per day. Thus, any health benefits of the vitamins in the Vitamin Water are more than offset by the deleterious effect of the excess sugar in the drink.


In January of this year, the Center for Science in the Public Interest (CSPI) filed a class action lawsuit against Vitamin Water claiming that it violates FDA policy by posing as a health drink. Coca-Cola, the owner of Vitamin Water, has countered with the argument that “no consumer could reasonably be misled into thinking Vitamin Water was a healthy beverage”. What will likely ensue will be a long battle as to whether the health claims are misleading or deceptive. It would be far simpler if the loophole was closed, and sugar was simply included in the US FTC Federal Regulations as one of the factors to be considered when determining whether a food or beverage product is eligible for health claim labeling.

CONCLUSION

The US Federal Trade Commission should seriously consider making these crucial amendments to the Federal Regulations. As the United States begins to place a premium on healthy eating in response to the growing obesity epidemic, food and beverages manufacturers are jumping at the opportunity to capitalize via marketing that speaks to the health benefits of a product. This will lead to consumer confusion and/or protracted litigation, unless the Federal Regulations provide clear and logical guidelines for which products are eligible for health claim labeling. The current guidelines do not suffice.

* Food Standards of Australia and New Zealand