Page 30 - FoodFocusThailand No.203 February 2023

SPECIAL FOCUS

Clean Label Claims and Reducing Legal Risk Claims that a product is “free of” particular nutrients,
Large and small companies have been receiving lawsuits ingredients, or substances are common ways companies convey
on labeling issues, and litigation can be expensive. The that their products are clean. In these cases, companies should
main legal risks associated with label claims are consider whether the food is 100% free of the identified substance
government enforcement, consumer class action (absent a defined claim allowing the presence of an insignificant
litigation, and competitor false advertising litigation. amount) and whether being “free of” that substance is common
Consumer class action litigation is the most significant to that food category.
and likely of those three. For example, because FDA has not defined trans fat nutrient
All clean label claims must be truthful, not misleading, content claims, no claim characterizing the level is permitted (such
and substantiated. Advertisers are responsible for as “low trans fat”). Moreover, any “zero trans fat” or “0 g trans fat”
substantiating all reasonable interpretations of claims claim made outside of the nutrition facts panel can present a risk
made. Even if a claim is true, it can still be misleading. if there is any trans fat in the product. They consider it a “twist of
FDA has defined some claims that fall under the clean FDA law” for some nutrients (including trans fat). The amount
label umbrella, but many are not defined. This creates must be clearly declared and rounded up or down as stated in
challenges and opportunities for food companies in the nutrition facts panel, but not when the nutrient content claim
marketing and successfully selling the products while is made outside the nutrition facts panel.
minimizing legal risks. The claim of “no antibiotics” is another example. It is illegal to
Claims about nutrient content are one way that food sell milk that contains antibiotics, so all milk must be antibiotic-
companies may create a clean label. However, free. Claiming that your milk contains no antibiotics, while true,
disclaimers may be required depending on the product’s can be misleading because the claim is not unique to your product.
specific claim and nutrient profile. English used the FDA- Some companies may rely on organic claims to imply that
defined claim “sugar-free” as an example. A company their product is clean. English stressed that organic is a production
may want to state that its product is sugar-free. But a method only and should not state or imply a “better-for-you” or
disclaimer about calorie content will be required—either “healthier” message. Further, English described the claim “natural”
“not a low-calorie food” or “low calorie,” depending on as “organic lite” and cautioned that the mere use of it, or claims
the product. This contrasts with the claim “healthy”— of 100%, pure, or zero guarantees, the product would be
another FDA-defined nutrient content claim some include examined. Both production and processing elements will be
within the concept of clean label—which does not require considered.
that specific disclaimer. Damages—what the company might owe to right the “wrong”
“Healthy” is an implied nutrient content claim that can caused by the allegedly mislabeled product can be very expensive,
be used only if the product meets certain nutrient but so are the legal fees and costs incurred in successfully
thresholds for fats, cholesterol, and sodium (low in those); defending a challenged label. For example, the label of Honey-
and specific vitamins and other so-called “good” nutrients Nut Cheerios, breakfast products brand, was claimed to be
(high in those). Even if a product meets the regulatory “healthy” before the US Food and Drug Administration (FDA) set
definition of healthy, other express or implied claims may a new definition of “healthy” for breakfast cereal products. The
result in an allegation that the product is not healthy–e.g., cereal would need to contain three-quarters of an ounce of whole
because of sugar content. grains and no more than 1 gram (g) of saturated fat, no more than
230 mg of sodium, and no more than 2.5 g of added sugars to
claim as “healthy”, while Honey-Nut Cheerios contain up to 12
grams of sugar, above the FDA limit. In light of these labeling
risks, FDA recommends that companies have their labels reviewed
early to identify and mitigate those risks.

More Information Service Info C003

เอกสารอ้างอิง / References
https://cleanlabel.globalfoodforums.com/clean-label-articles/clean-
labels-challenges/
https://www.globenewswire.com/en/news-release/2022/04/11/2419746/
28124/en/Global-Clean-Label-Ingredients-Market-Report-2022-with-
Extensive-Competitive-Benchmarking-of-the-Top-25-Players.html
https://www.foxnews.com/health/fda-redefine-healthy-food-labeling-no-
longer-include-honey-nut-cheerios-special-k-original

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