Imagine you are sitting at your desk on a Tuesday morning. You are going over your financials in preparation for tax season when your assistant knocks on your door. She walks into the office and drops mail on the desk. She mentions an envelope addressed to your attention with the FDA listed as the return address. Curious, you open it and to your surprise you find a letter stating that your company has violated the Federal Food, Drug, and Cosmetic Act (the “Act”). The letter states that you have 15 days to respond with corrective actions you plan to take in response to the violations.
This isn’t a hypothetical, this is similar to what happened to Kind LLC last month, the maker of Kind bars. In the Warning Letter, the FDA noted multiple violations, including the improper use of the word “healthy” on the Kind bar labels. Pursuant to federal regulations, a food can make a “healthy” claim only if it has 1 gram or less of saturated fat per serving and gets no more than 15 percent of its calories from saturated fat. The four Kind bars called out in the FDA’s letter—Fruit & Nut Almond & Apricot, Fruit & Nut Almond & Coconut, Kind Plus Peanut Butter Dark Chocolate + Protein, and Kind Plus Dark Chocolate Cherry Cashew + Antioxidants—have between 2.5 and 5 grams.
The letter also stated the use of the “+” symbol was in violation of the applicable regulations. The regulations state that “plus” can be used if a food has 10 percent more of a nutrient than another similar food, and the product lists that food. The Kind bars don’t. Kind bars carry a “good source of fiber” claim, which claim is defined as 10 to 19 percent of the DRV for a nutrient. In this case, that’s 2.5 to 4.75 grams of fiber—and the Kind bars in question do meet the definition. However, if the product is not low-fat (containing 3 grams or less), then that fact must be disclosed on the label, near the fiber claim. Again Kind bars don’t.
While these are only some of the alleged violations in the Warning Letter, you can see the list is pretty extensive. Not only must Kind respond to the FDA with corrective actions, but now they face the significant expense of revising their labels, adverting and website. This is no small task for an international food producer. However, this risk could have been mitigated through an in-depth label review. The FDA’s regulations covering health and nutritional claims are complex and not always transparent. As demonstrated in the letter to Kind, this is a reminder of how important it is for food businesses to have an in-depth review of their labels and marketing prior to production. Most important to point out is that FDA regulations affect businesses of all sizes, so small and startup food businesses with limited experience navigating federal regulations should pay particular attention to their labels and marketing.
If your business is unsure whether a product label is in compliance with, or need assistance in adapting your label to meet, FDA regulations please contact our attorneys at Morsel Law.