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May 24, 2016

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We recommend that you read an Advisory from Arnold & Porter discussing FDA's two final rules overhauling the agency's policies for its Nutrition and Supplement Facts labels and Serving Sizes, and highlighting future FDA action that should be on the radar of any company involved in the manufacture or labeling of conventional foods and dietary supplements. These final rules mark the most significant changes to FDA's food labeling policies in more than 20 years. Companies will want to pay close attention to the changes, which include a redesign of the nutrition facts label and new requirements for dual-column labeling, a mandatory declaration of added sugars, a narrower definition of dietary fibers, and new age categories for infants and children.

As previously discussed, FDA's overhaul of its Nutrition Facts label and related nutritional labeling requirements is only one of many actions taken by the agency this year to update its regulation of what can and cannot be said about food. Last week, the agency released updated guidance for industry upholding its 2009 guidance against the use of the term "evaporated cane juice" to declare the presence of sweeteners derived from the fluid extract of sugar cane (an action that is expected to have a material impact on current and future litigation regarding the use of "evaporated cane juice" as the common and usual name for sugar in product labeling). Earlier this month, FDA issued updated guidance for industry regarding medical foods and announced its intent to reevaluate its regulation of nutrient content claims in the same week. The announcement regarding nutrient content claims was due in part to a citizen petition filed by KIND LLC regarding FDA's requirements for labeling a product as "healthy." By the end of the year, the FDA is expected to opine on the use of "natural" on food labels. The agency formally closed the docket on its November 2015 request for comment regarding the use of "natural" on food labels (which we discussed) on May 10.

The FDA's recent policy changes should remind food manufacturers to be vigilant and attentive about claims made based on ingredients in their products. In addition to regulatory changes, companies should be mindful that the updated labeling policies may fuel increasing pressure from consumers, public health advocates, and plaintiffs' attorneys related to claims regarding the nutritional content (and benefits) of food.

© Arnold & Porter Kaye Scholer LLP 2016 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

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