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  • Debra Topham

Is a “Healthy” food label claim now just puffery?

Keller and Heckman LLP in their blog, alerted us to a recent Wall Street Journal interview of FDA Commissioner, Dr. Scott Gottlieb. Both the original interview and K&H’s take aways are worth reading, but here’s some key points.

  • A Healthy claim might simply be a commercial claim, and thus not a FDA regulated claim.“We might make a decision that that [healthy] claim is more of a commercial claim and doesn’t really convey something important from a public-health standpoint to a consumer.” (Gottlieb)This begs the question if its not a claim and just a commercial claim, then will “Healthy” simply be a type of puffery. Remember puffery is just a grand claim that the public would never actually consider to be true….such as the phrase “The worlds greatest hamburgers!” So is the phase “The worlds healthiest hamburgers!” just a commercial claims and ok to use? Short answer – consult your attorney.

  • The FDA considers claims (i.e. label and labeling claims) to be a matter of public health.“This [food label regulation] isn’t just an issue of transparency. This is an issue of public health.” (Gottlieb)“You [WSJ Editor, Jacob Bunge]  talk about them as transparency initiatives. I look at them as public-health initiatives.” (Gottlieb)Its worth noting the phrase “public-health” is repeated 9 times, which only emphasizes how much the FDA’s mission, which begins “The Food and Drug Administration is responsible for protecting the public health by…”,  is engrained into their culture,

  • The FDA doesn’t like that states, like California,  end up regulating.““Healthy”…is a subject of litigation in California.“When certain claims that might be important to providing information to consumers get made in the absence of a scientific framework and get litigated in state courts and torts, outside our review, I think that isn’t what was intended.” (Gottlieb)

  • “Healthy” generates a bunch of industry angst.Keller and Heckman point out, “In September 2016, FDA issued a request for comments on the use of the term “healthy” on food labels, and by April 26, 2017, the Agency received over 1,000 comments.”

Bottom line: The word “healthy” is clearly defined by FDA’s current 21CFR101.55, open to consumer’s interpretation, and subject to litigation on many fronts.