Page 69 - Farm and Food Policy Strategies for 2040 Series

proliferation of legal challenges to the use of the term on a variety of foods. “FDA has been
working on that as long as I’ve been practicing law,” he adds — beginning in 1987.

“The rules evolve with the science,” O’Flaherty says. “That’s a trend that’s likely to
continue.” With new tools, such as QR codes, “I see the possibility of a lot more voluntary
information to be conveyed.” One example may be food traceability. In the event of a recall,
“new technology might provide a way to label or include in a QR code where the product came
from,” he says.

FDA’s new nutrition innovation strategy may provide an
opening for a “low carbohydrate” food label that currently is
not allowed, O’Flaherty observes. Changing the legal

landscape would entail petitioning FDA to promulgate a
regulation defining “low-carb” and possibly other claims about
the total carbohydrate content of a food. FDA’s present
regulations were promulgated in the early 1990s “and are a
bit dated,” he opines.

A potential signpost on the road to the future of food labeling Stephanie Harris, FMI
lies in the current “laundry list of labeling requirements” facing

food retailers, Stephanie Harris, chief regulatory officer at
FMI, says in a January 2019 blog post. “These labeling
requirements include product identity information … (and) also

varying types of labeling needs for food products depending on
whether they are ‘packaged’ or ‘unpackaged’.” She noted that

even imported fresh fruit such as the banana is subject to

country-of-origin labeling requirements.

The “laundry list” of consumer hopes for label information might include, depending on who is
composing the list, a food’s country (or even domestic location) of origin, whether it follows
certain “fair trade” characteristics, whether it was raised without pesticides or hormones, and
whether it meets anticipated “natural,” “local” or “sustainable” expectations.

Manufacturers are responding to customer pressure for labels to clarify when a perishable food is

no longer safe to eat. Since GMA and FMI launched a voluntary program in 2017, some 87% of
products now carry “best if used by” or “use by” language.

Although odds appear small, USDA also may be able to dust off its old country-of-origin
(COOL) label regulations for red meat. The grassroots producer group R-CALF USA late last
year urged President Trump to issue an executive order to bring back mandatory origin labels for
beef that’s consistent with his “Buy American Hire American” executive order. COOL was in
force from 2013 to 2015 when Congress, reacting to pressure from interests affected by World
Trade Organization (WTO) rulings finding COOL violated its agreements, repealed the scheme.

State and local food labeling laws and regulations also will bear watching. San Francisco is

facing legal scrutiny for a 2015 ordinance that required health warnings that beverages with
added sugars “contributes to obesity, diabetes and tooth decay.” A federal appeals court has ruled

that the requirement probably violates the First Amendment to the Constitution.

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