It is my pleasure to introduce fellow food law geek, Gabriella Agostinelli. Garbiella is a second year law student at SUNY Buffalo School of Law. She is originally from Rochester, NY, absolutely food obsessed, and she hopes to build a professional legal career celebrating food in all its forms. Her first contribution to the LLC contemplates the importance of accurate labeling for food products:

Just weeks after General Mills came under fire for allegedly “deceptive” marketing and labeling claims, similar controversy has now arisen for fellow food giant Hershey Co with its chocolate-syrup labeling. Months ago, the FDA issued a warning to the company that two of their products, Hershey’s Syrup+Calcium and its Syrup Sugar Free with Vitamin & Mineral Fortification, violated the Food Drug and Cosmetic Act. FDA claims that Hershey’s product labels bore nutrient content claims that did not meet the requirements to make the claims, in violation of 21 U.S.C. § 343(r)(1)(A). The products’ nutritional contents did not meet the guidelines warranting the use of a “plus” sign or the word “fortification.”

The FDA regulates a broad range of words food companies can use to market their products. Devices such as plus signs and words like “with” are referred to as “More” claims and their permissible use is described at 21 CFR 101.54(e). For example, producers can only use “more” claims when the food contains more than 10% of the recommended daily intake for the fortified nutrient. This is where Hershey’s dropped the ball.

To avoid further issues, Hershey’s recently changed the plus sign to “with” and has removed “fortification” from the other label.

If seasoned vets like General Mills and Hershey’s can mislabel, one can imagine the potential dangers small businesses could face when labeling their products. A corporate titan like Hershey’s can bounce back from a mistake like this and absorb the financial losses associated with recalling and rebranding. Smaller businesses have zero margin for error.

A good start it to check out the FDA’s Food Labeling Guide, which provides a summary of the required statements that must appear on food labels under federal laws and regulations. The FDA does not pre-approve labels for food products, so it has to be done right the first time around.

There is, however, no substitute for expertise. Food entrepreneurs have a compelling need to distinguish their products from their competitors. That can be done through better sourcing or different recipes, but the label is probably the most important interface they have with new customers. The label is the first chance they get to discuss the things that make them different. New food businesses, therefore, need to push the regulatory limits even more than established businesses, and labeling is a regulatory minefield. No marketing strategy for a food product can be complete without some level of labeling review by someone familiar with the mass of regulation that governs the words you can use on your product.