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Hot Topics in Clean Labelling

Genetically modified foodWelcome back to the Regulatory Arena and our third edition on the Clean Label. In our first edition, we introduced and explored the definition of the “clean label” and set the stage for the upcoming discussions. In our last edition, we considered some of the differences in the treatment of the “clean label” in Canada and the U.S.

In this edition, we will dig into some “hot topics” in clean labelling: all natural, GMO-free and highlighted ingredient claims.

In an age of increased awareness about the link between health and food, Canadian consumers are taking a much greater interest in what goes into the food they eat. We’re seeing increasing skepticism and heightened scrutiny of food labels and their claims. Consumers are demanding transparency and truth, and they will take action if a manufacturer makes misrepresentations about its product. Below, we set out some of the key clean label trends, and what our Canadian regulator has to say about them.

ALL NATURAL
We have recently seen an explosion in the number of foods claiming to be “all natural”. Without question, “natural” is one of the leading clean label trends – industry is responding to consumers’ desire to go natural and is pushing the envelope in the process.

As we set out in the last edition of the Regulatory Arena, the CFIA has provided us with some guidance on the meaning of a “natural” food or ingredient: nothing added (no added vitamins, minerals, artificial flavours or additives), nothing subtracted (other than water – that’s ok) and be made by nature (no process that has significantly altered the food’s original physical, chemical or biological state).

According to this guidance, a natural food or ingredient is one which has been produced through the ordinary course of nature without the interference or influence of humans. The CFIA will not object to “natural” and “all natural” claims as long as they are factual and not misleading.

And this is where things get interesting: companies can make “natural ingredients” claims where foods contain some (but not all) natural ingredients. If the label is not clear as to which ingredients are natural, consumers can be left with a false impression regarding the overall composition of the food. For example, consider a bottle of juice labelled “made with 100% all natural fruit juice” that, upon closer inspection reveals that in fact only the apple juice (which comprises 5% of the overall ingredients) is truly natural. 100% of the apple juice is natural, but the food is not made up of apple juice alone. Watch out industry: that could be found misleading.

GMO
The “GMO Issue” is one of the most hotly debated clean label related issues and is notorious for polarizing industry and consumers. As a direct result of the debates around the safety of GMOs, and arguments in favour of transparency for consumers, a number of countries have implemented policies requiring mandatory labelling of GMO foods (e.g., the European Union, Japan, Australia, Russia, China and Brazil).

In Canada, there is no mandatory labelling of GMOs. Instead, a national standard for voluntary labelling of “genetically engineered” foods has been established. Pursuant to this voluntary standard, claims on foods that are and are not products of genetic engineering may be made, provided such claims are understandable, informative, truthful, not misleading or deceptive, and not likely to create an erroneous impression of a food’s character, value, composition, merit or safety.

The operative word here is voluntary. Health Canada has taken the position that GMOs do not pose a health or safety risk to Canadians, and accordingly, there are no mandatory labelling requirements for GMOs in the Food and Drug Regulations.

HIGHLIGHTED INGREDIENTS AND FLAVOURS
Another key trend falling into the “transparent labels” category is the highlighting of ingredients on food labels. Specifically, we’re seeing companies highlighting good-for-us ingredients, and diminishing the presence of not-so-good-for-us ingredients. Remember: food labels cannot be false or misleading or leave consumers with an erroneous impression regarding the food’s character.

The CFIA has provided us with some guidance around claims that highlight ingredients or flavours: a label cannot overemphasize the importance, presence or absence of an ingredient to make the product seem more desirable to a consumer. The objective of these guidelines is to help industry in clean, transparent labelling that provides consumers with meaningful information about the food they purchase.

Areas of concern, which are addressed in the CFIA’s guidelines, include: substitution, over-emphasis, and misrepresentation of flavours.

Substitution occurs when an imitation ingredient is present in a food to replace a highlighted ingredient. In these cases, industry must be sure that any name or description on the label must not lead consumers to conclude that the imitation or substitute contained in the product is the real deal.

Over-emphasis occurs when a highlighted ingredient is not present in the food in the amount to which it is represented on the label. For example, it is misleading to over-emphasize the presence of butter in a cake when butter is actually the minor shortening ingredient. In principle, any emphasis regarding the presence of an ingredient, component or substance should be accompanied by a statement regarding the amount of that ingredient, component or substance present in the food.

Misrepresentation of flavours occurs when flavours or very small amounts of ingredients are added for the purpose of flavouring but representation (through claims or vignettes) creates an impression that either the actual ingredient was added (rather than a flavour) or there is more of the ingredient in the food than is actually the case. For example, you can’t put a blueberry on your juice carton if there is no (or minimal) blueberry in the juice itself.

AHEM… WHY DO WE CARE?
You may find yourself asking: seriously, why does any of this matter? We’ll tell you why it matters: there are pretty significant implications for your brand if you are found to be making misrepresentations about your product on its label.

Aside from the dreaded R-word (rhymes with “me-call”) and the negative implications on a brand associated with a finding of non-compliance by Health Canada, the Food and Drugs Act and Consumer Packaging and Labelling Act contain some pretty harsh penalties for making misleading claims on a food label. Stay tuned – we are going to return to this issue in our next (Winter) installment of the Regulatory Arena!

The CFIA has provided us with some guidance around claims that highlight ingredients or flavours: a label cannot overemphasize the importance, presence or absence of an ingredient to make the product seem more desirable to a consumer. The objective of these guidelines is to help industry in clean, transparent labelling that provides consumers with meaningful information about the food they purchase.

by Sara Zborovski

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