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Designing a Clean Label

Welcome to the fourth and final edition of the Regulatory Arena devoted to the Clean Label. It has been a lot of fun so far: we have defined the “clean label”, considered its treatment in Canada compared to the United States, and dug into some hot topics in clean labelling.

In this Regulatory Arena, we move off of compliance and onto enforcement. What happens if you get it wrong with your clean label?

In short, you might be hearing from the Canadian Food Inspection Agency (CFIA). The CFIA enforces food-related legislation and enhances and improves compliance through enforcement activities. One of the things on the CFIA’s agenda is policing food labels for compliance with, among other things, the Food and Drugs Act.

The Prohibition on False and Misleading Labels
The Food and Drugs Act prohibits the labeling of food in a manner that is false, misleading or deceptive, or is likely to create an erroneous impression regarding its character, value, quantity, composition, merit or safety. Among other things, this means that industry can’t ascribe a benefit to a food that isn’t there.

Recall that the clean label trend is all about creating a perception about a food: made using “clean” ingredients, by “clean” processes. A clean label is one that brags to consumers about the “cleanliness” (amazingness) of the product inside.

It is important that industry can support all of the claims (clean or otherwise) made on the labels of food sold in Canada.

In considering whether a label is truthful and not misleading, all aspects of the label are considered, including the name of the product, pictures on the label and that the claims made about the product. We care about the overall impression made by the label.

If a label is not an accurate representation of the product inside, technically that label is non-compliant with the regulatory regime for labelling, and subject to enforcement by the CFIA.

A Finding of Non-Compliance and CFIA Enforcement
A non-compliant label can be brought to the attention of the CFIA in a number of different ways: through a consumer complaint, by industry self-reporting and by its own spot-audits of grocery store shelves (yes, the CFIA samples and tests products to ensure accuracy in food labelling).

Lucky for the Canadian food industry: the CFIA believes in the importance of communication with regulated parties and in generating compliance. Once a non-compliance has been identified, the CFIA will work with the regulated party to bring the product into compliance.

As set out in the CFIA’s Compliance and Enforcement Operational Policy, the Agency’s approach to compliance and enforcement is as follows:

[it] is based on the concept of a compliance and enforcement continuum, which includes providing information on and the assessment of compliance as well as responding to non-compliance. This is done through a wide variety of approaches, including communicating with regulated parties; conducting inspection activities; and taking appropriate enforcement actions in responding to non-compliance.

In the event of a clean label that is not accurate, the CFIA will determine the appropriate response, based on a fact-specific analysis considering: the severity of the non-compliance; the potential or actual harm to Canadian consumers; the company’s history; and the intent behind the non-compliance.

And here it is: it is possible that the CFIA would request a company recall a product that is inappropriately labeled as being too clean.

Recalls can be costly for industry, both in terms of money and time spent on actioning the recall, and in the loss of consumer goodwill associated with the brand that is being recalled. In the case of the clean labelling trend, it could be the hit to the brand that is the most important.
As we have discussed over the year here at the Regulatory Arena, the clean label trend is all about transparency – telling consumers about what is in the product – and using ingredients perceived as beneficial. Thus, a recall of a perceived “clean” product because of an inaccurate (false or misleading) label, could be seen as particularly troubling for consumers keen on the clean label trend.

A Final Word: Be Careful!
And so our final message for industry in connection with the clean label trend is this: tread carefully.

Industry has to balance delivering labels that consumers want on the one hand, with labels that the CFIA wants (i.e. those that are regulatory compliant) on the other. Somewhere in the middle is the sweet-spot for each Canadian food label: the one that draws clean-conscious consumers in, without upsetting our regulator.

Text by Sara Zborovski

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