This blog post was written by Abe Cohn and Originally Appeared on Entrepreneurial Chef Magazine
While you absolutely loved fruit roll ups as a child, your adult sensibilities now recognize that a healthier version would have probably served your body better and you’ve since made it your life’s mission to build an organic taffy company. Congratulations! Of course, you have a lot of work ahead of you but you recognize that the most important aspect and indeed the core of your product offering is the impeccably healthy ingredients used to make the taffy. After months of tireless work with a food scientist and endless conversations with various fruit farms regarding ingredient sourcing, you’ve developed a line of cherry, strawberry, and grape taffies that are both healthy and delicious.
It is now time to submit the final ingredient list to your graphic designer, which will be artfully, but accurately, incorporated on the back of the taffy wrappers. After a couple of days, the graphic designer excitedly calls you on the phone and says he is almost done! He has just one question; the ingredient list for the cherry line says “cherry fruit” but in previous conversations, you’ve mentioned that the taffy only contains “cherry juice concentrate”. What should be written on the taffy wrapper to comply with food labeling requirements?
Accurate Food Labeling – Why it Matters
On the most fundamental level, food labels are certificates of trust. Behind the legal requirement of an accurate label is the recognition that there is an asymmetry of information about the product vis-à-vis the food manufacturer and the consumer. Indeed, the manufacturer has knowledge and (at least minimal) control over the source of the ingredients, the manufacturing facility and the end product while the consumer has, effectively, zero information and control. Take a moment to consider just how crazy of a proposition this is – a consumer walks into a grocery store, sees a package containing some kind of “food” from a company he may or may not have heard of and believes, based on what is written on the package that he is purchasing something edible rather than something that might very well be poisonous. This entire exchange cannot happen without the consumer believing in the integrity of the product and the importance of truthful and accurate labeling therefore cannot be overstated.
The Regulatory Powers of the FDA Vis-a-Vis Food Labeling
The Food and Drug Administration (FDA) is tasked with promulgating the health and safety of the public by regulating both domestic and foreign-sourced food (except meat, which is regulated by the USDA’s Food Safety and Inspection Service). For our purposes, it is sufficient to understand that the FDA’s Center for Food Safety and Applied Nutrition (CFSA) regulates food products specifically and under the purview of its Office of Nutrition, Labeling, and Dietary Supplements, manages the various regulations and requirements, which govern food and package labeling. Simply, it is up to the FDA (at least in large part) to ensure that food manufactures are accurately describing their products.
The Enforcement Powers of the FDA
Returning to our thought experiment, the designer has correctly intuited that it might be legally problematic to write on the packaging that one of the ingredients is “cherry fruit” when it is in fact only “cherry juice concentrate.” Is he right? Well, as one can readily imagine, there are a number of technical questions about the actual cherry ingredient that must first be answered in order to determine whether or not the description is proper but suffice it to say, the guiding principle for labeling is (or at least should be) honesty. While it might be tempting to write that the taffy contains actual cherries (making the product appear healthy and natural), it would be at best disingenuous and at worst legally objectionable to write “cherry fruit” if the taffy only contains cherry juice concentrate.
In the event that a complaint is issued with the FDA alleging that the label contains inaccurate information, the FDA will typically first send a warning letter to the food manufacturer detailing the nature of the alleged infraction and the corrective measures that should be taken. Ideally (from the FDA’s perspective), the letter will instill enough fear in the manufacturer that that the company will voluntarily correct the labels and no further action will be necessary. If the manufacturing company does not heed the FDA’s warning AND the FDA determines that the mislabeling is a serious and dangerous obfuscation, the FDA has the power to recall, seize, fine and issue an injunction on the production of further products. Again, it is important to note that these measures are typically taken only under very severe circumstances and of course only after the food company is afforded due process in the form of notice and opportunity to respond.
Ultimately, food companies should do everything in their power to avoid making even the tiniest blip on the FDA’s radar by following all of the appropriate regulatory and compliance directives. Furthermore, beyond the potential legal fallout of a fraudulent packaging claim, it is just poor business strategy to intentionally mislabel products. Consumers are becoming increasingly educated and mobilized and a viral news story about a “healthy taffy company” that is actually lying about its ingredients will ruin a company faster than you can say the word, taffy.