Food industry pushes back against FDA proposal redefining the word ‘healthy’

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The U.S. Food and Drug Administration (FDA) proposed a rule that would change the requirements regarding the nutritional value of certain foods, to qualify for use of the word “healthy” on their packaging. Consumer brands claimed the move would restrict their Free Speech rights.

Key Players

The FDA, a federal agency within the Department of Health and Human Services (HHS), regulates the food and drug industries. Its proposal would establish more stringent nutritional guidelines to help consumers decide whether foods are “healthy.”  

Food manufacturing groups, such as the Consumer Brands Association (CBA), which represents over 1,700 different food brands, voiced concerns about the proposal, claiming that it was too restrictive and violated companies’ Free Speech rights by regulating how they advertise their products. The deadline for public comments was Feb. 16, 2023, returning the proposed regulation back to the FDA to create a final rule.

Further Details

The FDA first published the proposal in September 2022, establishing stricter potential requirements for food products that use the word “healthy” on their food labels.

The new rules would “align the definition of the ‘healthy’ claim with current nutrition science, the updated Nutrition Facts label and the current Dietary Guidelines for Americans,”according to the FDA.

The agency argued that this updated guidance would help improve diet and reduce chronic disease. The move came on the day following the White House Conference on Hunger, Nutrition, and Health, as part of an initiative by the Biden administration to eliminate hunger and promote healthy eating among Americans.

Under the proposed rule, dairy products and grains could contain only 2.5 grams of added sugar per serving. Other products such as fruits, vegetables, meats, nuts and eggs could not contain any added sugar, and includes specific percentage limits for saturated fat, sodium, and added sugar. Products must contain a “meaningful amount” of food from at least one of the major food groups or subgroups, as outlined in the FDA’s Dietary Guidelines. It also says that the word “healthy” should not appear on non-nutrient-dense foods that have been heavily processed.

“Healthy food can lower our risk for chronic disease. But too many people may not know what constitutes healthy food. FDA’s move will help educate more Americans to improve health outcomes, tackle health disparities and save lives,” Xavier Becerra, HHS secretary, stated. 

Outcome

Consumer brands claim proposal violates companies’ Free Speech rights

Following the FDA’s publication of the proposal, food manufacturers decried the suggested regulation as unconstitutional and a potential infringement on companies’ First Amendment rights, The Washington Post reported. 

On Feb. 16, 2023, the day of the deadline for public comments from interested persons and organizations, the CBA submitted a framework, offering an alternative to the FDA proposal. “FDA’s proposed changes to its “healthy” definition will contradict the current Dietary Guidelines, causing confusion among consumers and potentially inviting legal challenges for the agency,” the framework stated. 

The CBA also claimed the proposal would disqualify an estimated 95% of foods currently marketed as “healthy.”

“Consumers have a First Amendment right to receive truthful information about products and manufacturers have a First Amendment right to provide it to them,” the CBA argued.  

Other food brands voiced concerns as well. 

“The Proposed Rule precludes many objectively healthy products, including those promoted by the Dietary Guidelines, from engaging in truthful, non-misleading commercial expression — and these overly restrictive boundaries for ‘healthy’ violate the First Amendment,” General Mills, a large American manufacturer of processed foods, wrote.

Both General Mills and Kellogg’s argued that the proposal violated the Administrative Procedure Act, a federal law that governs how federal agencies develop and issue regulations, calling the proposal “unduly restrictive,” The National Law Review reported. 

Conagra Brands, another major American packaged foods manufacturer, said it believed the proposal could ultimately lead companies to focus less on healthy options. 

“It is our strong conviction that if the FDA’s proposal is adopted in its current form, companies like Conagra will have every incentive to shift their innovation efforts away from products labeled as ‘healthy’ and towards less healthy options,” Conagra stated.

If implemented, the proposal would allow for a three-year compliance period to provide companies time to comply with the regulation. As of April 5, 2023, there were no further developments.