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The move is temporary for the duration of the public health emergency. But some worry there’ll be wiggle room left for food manufacturers and vending machine operators to lobby for less regulation permanently.
Four days after the World Health Organization (WHO) declared the coronavirus outbreak a pandemic in March, the head of one of the food industry’s biggest lobby groups met with President Donald Trump to discuss supply chain concerns. Chief among the trade association’s requests was that the federal government suspend all decisions on new food regulations for the next six months.
Otherwise, red tape could “hinder supply chains or take focus and resources away from the national need for increased production and delivery of critical goods,” Geoff Freeman, president and CEO of the Consumer Brands Association (CBA), reiterated in a follow-up letter. CBA represents some of the largest food manufacturers in the country, including General Mills, Coca-Cola, and Hormel. (It was known as the Grocery Manufacturers Association until a rebrand late last year.)
Last Friday, the Food and Drug Administration (FDA) did the group one better, announcing that it would allow food manufacturers to make “minor” substitutions and omissions in finished food and beverage products, without having to revise ingredient labels. In pre-pandemic times, this practice would have been considered adulteration. However, due to “unforeseen shortages or supply chain disruptions” related to the Covid-19 pandemic, the agency said it does not “intend to object” if food labels are slightly inaccurate.
A substituted ingredient can’t be a common allergen, which includes “the big eight” like eggs, milk, and nuts, as well as others associated with severe health consequences like buckwheat and sesame.
The move was welcomed by manufacturers, but drew criticism from allergy awareness advocates who fear that undeclared substitutions could put the health of eaters with food sensitivities at risk.
In a guidance—wordily titled “Temporary Flexibility Policy Regarding Certain Labeling Requirements for Foods for Humans”—FDA outlines the specific instances in which it will permit manufacturers to substitute or omit ingredients contrary to a product’s label. For one, a substituted ingredient can’t be a common allergen, which includes those on FDA’s “big eight” list, like soy, eggs, milk, and shellfish, as well some not on the big eight list but that are known to cause severe health consequences like buckwheat and sesame. Additionally, any replacement ingredient shouldn’t make up more than 2 percent of a product’s weight, and shouldn’t alter its nutritional profile. It also can’t be a defining ingredient, examples of which FDA lists as raisins in raisin bread or butter in cookies marketed as “made with real butter.”
This is the latest in a series of guidances issued by FDA to loosen regulations during Covid-19. In March, the agency waived nutrition facts labeling requirements for restaurants that pivoted to retail sales in response to stay-at-home orders. In April, it relaxed egg labeling laws.
“Changing the ingredients used in food manufacturing can be a simpler and quicker process than creating new labels for the product packaging.”
CBA applauded FDA’s guidance, and food policy experts agreed that they were practical during the public health emergency.
“Changing the ingredients used in food manufacturing can be a simpler and quicker process than creating new labels for the product packaging,” said John Bovay, assistant professor of agricultural and applied economics at Virginia Tech. “Packaging and labeling is often made by a different company than the food itself, and production of packaging with printed labels might be scheduled months in advance. Given this, and additional pressures that have emerged because of the pandemic, some flexibility in labeling is quite sensible.”
Rather than redesign and print new labels, manufacturers can disclose substitutions in alternative ways, such as online or on signs at grocery stores. At the same time, it could be a win for eaters, who are grocery shopping and eating at home more than ever due to stay-at-home orders across the country, leading to temporary shortages or empty shelves. Some shortages have limited the items available to families who participate in the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), which provides vouchers for a narrow list of eligible foods.
While manufacturers aren’t allowed to swap in known allergens without disclosing them, there are many foods that can still trigger severe reactions.
“Having products on the shelves is important psychologically,” said Diana Winters, assistant director at the Resnick Center for Food Law & Policy at UCLA School of Law. “When people see an empty shelf, that’s when hoarding happens. So it’s important to keep our economy flowing smoothly.”
On the other hand, FDA’s guidance raises concerns about eaters with less common allergies or dietary sensitivities. While manufacturers aren’t allowed to swap in known allergens without disclosing them, there are many foods that can still trigger severe reactions.
“FDA’s guidance casts doubt on whether those with food allergies can safely and confidently purchase food if labels will not provide necessary information regarding ingredients,” wrote the non-profit Food Allergy Research & Education (FARE) group in a statement. The organization is demanding that FDA revise its guidance, and require—rather than simply encourage—manufacturers to announce any ingredient changes via social media and on product stickers or in-store signage.
“A court could feasibly decide that some sort of substitution, even if it complied with the guidance, was unreasonable.”
While manufacturers that make undisclosed substitutions or omissions won’t have to worry about FDA enforcement, they could still be vulnerable to litigation. “Guidance isn’t binding,” said Winters. “If a company complies with this, it’s not necessarily going to insulate them from liability.”
Winters isn’t predicting a flood of lawsuits during the pandemic. Rather, it will be increasingly likely that an eater has an allergic reaction to an unlisted ingredient as time goes on.
“Six months down the road—what if somebody does have an allergic reaction to something that was substituted?” she said. “A court could feasibly decide that some sort of substitution, even if it complied with the guidance, was unreasonable.”
While the guidance language implies that FDA’s new, laxer stances are limited to the duration of the Covid-19 public emergency, the agency nonetheless leaves a door open to post-pandemic extensions based on public response and “our experience.”
Nestled in the guidance is another flexibility that will surely please the food industry: The agency will also temporarily roll back calorie labeling rules for vending machine operators, who are normally required to either stock items that feature front-of-package calorie counts, or to display calorie count signage. Last month, the National Automatic Merchandising Association, a trade group that represents the vending machine operators, asked FDA to relax the Obama-era regulations, arguing that they posed an “undue burden” during the pandemic because of unpredictable inventory and high demand for new machines in places like pop-up hospitals. In its new guidance, FDA gave the industry a green light to temporarily ignore the rules.
Loosening the rules represents an encouraging and timely flexibility that will help keep food moving from producers to consumers, Winters said. But just as important is FDA’s urgency in re-establishing both ingredient and calorie labeling rules if and when the pandemic is over. While the guidance language implies that FDA’s new, laxer stances are limited to the duration of the Covid-19 public emergency, the agency nonetheless leaves a door open to post-pandemic extensions based on public response and “our experience.” Kinda sounds like there might be wiggle room for food manufacturers and vending machine operators to lobby for less regulation permanently, right?
“Information is really important to consumers,” Winter said. “In a crisis, [the guidance] totally makes sense…. But what if nothing is actually issued saying, ‘Okay, now the public health emergency is over, time to go back to [labeling]’?
“Will there be any energy to enforce this kind of thing for the next decade? Who knows?”
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