ACI 5 th Advanced Regulatory and Compliance Summit on Food and Beverage Marketing and Advertising Chicago, Illinois July 29,

Bruce Silverglade Principal OFW Law Washington, DC

FDA Nutrition Labeling Revamp What Food Companies Need to Know To Update Their Marketing Efforts 3

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ORIGINAL NUTRITION FACTS LABEL HAD A MAJOR IMPACT  Original label became effective in 1994  Emphasis at that time was on fat content  More than 6,000 new “low fat” foods were introduced in the marketplace in

Trans Fat disclosure was added in 2006 Trans Fat content in processed foods declined by about 50% 7

New FDA revisions are High Profile White House led announcement followed by statement by FDA Commissioner Hamburg 8

Statement of FDA Commissioner Margaret Hamburg Emphasizes: > Calories > Serving sizes > Percent daily values 9

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Marketing Impact – Strategic Planning  Threat or opportunity –  Now is the time to consider new strategic marketing efforts  Almost every company will still have a tool kit to work with  The “tools,” however, will be different

MARKETIG IMPACT – What will the changes entail?  Let’s take a look at the proposed changes and consider the new tools that may be available to communicate the health benefits of your product

MARKETING IMPACTS – BOLDER “CALORIE” DISCLOSURES  Total calorie content of foods will be emphasized to a greater extent  FDA wants to prevent mishap in 1996 where many new “low fat” foods had as many calories as traditional counterpart  Fat was replaced with sugar 14

MARKETING IMPACTS – SERVING SIZES  More than 30 serving sizes (RACCs) will change; most will increase.  Serving size for ice cream will double – that means calorie content, as well as fat, sugar, and sodium content on the Nutrition Facts label will double as well 15

MARKETING IMPACTS – SINGLE SIZE SERVINGS  New rules for single size servings  Will require nutrition information for entire package  What will impact be on package sizes?  Will dual column labeling be an option? 16

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MARKETING IMPACT – HEALTH AND NUTRITION CLAIMS  Increasing the amount of fat, saturated fat, cholesterol and sodium listed on the Nutrition Facts panel to comply with new serving sizes and single serving regulations will impact ability to use health and nutrition claims 19

MARKETING IMPACT: HEALTH AND NUTRITION CLAIMS  Health and nutrition claims are limited when fat, saturated fat, cholesterol, or sodium content exceed 20% of the Daily Value  That limit will be reached more quickly, given that higher amounts of those nutrients will have to be declared 20

MARKETING IMPACT – SODIUM  The DV for sodium will increase  The cutoff for health claims for foods with 20% or more of the DV for sodium remains the same  Result: Foods making health claims may have to decrease sodium content or drop the claim 21

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MARKETING IMPACT – FIBER CONTENT  FDA is proposing to change the definition of fiber  Certain ingredients will no longer be counted as “fiber” for disclosure purposes on the Nutrition Facts label 23

MARKETING IMPACT: % DAILY VALUES  FDA proposes to give % Daily Values (DV) greater prominence  Will be placed on left side of label 24

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Alternate Format Issued by FDA for comment Reveals Agency’s true agenda 26

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MARKETING IMPACT – ADDED SUGARS DISCLOSURE  FDA proposes to require new line on Nutrition Facts for Added Sugar Content  Not related to disease, but rather “nutrient density”  FDA’s own definition of “Healthy” does not consider sugar content 28

MARKETING IMPACT – ADDED SUGARS DISCLOSURE  Will be enforced by huge recordkeeping and inspection requirement  Recordkeeping required even if little sugars are added  FDA inspectors may request formulas and other proprietary information 29

MARKETING IMPACT – ADDED SUGARS DISCLOSURE  FDA study on utility of added sugars disclosure is still ongoing; impact on consumers unclear  Consumer confusion is likely to result – Here is why: 30

CurrentCurrent ProposedProposed 31

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MARKETING IMPACT - FRONT OF PACKAGE NUTRITION LABELING SUMMARIES  Front of pack “Facts up Front” and Wal-Mart “Good for You” symbol currently in use  FDA considering issuing federal uniform scheme  Not part of this rulemaking, but coming down the road... 33

QUESTIONS - LET’S TALK  Bruce Silverglade Bruce Silverglade  