January 17, 2012
Since last appearing as resident Milk Expert on this humble blog, Dave Jackson has added to his Food Law skill-set, mastering the byzantine world of food labeling regulations. Late last week, Consumerist ran a story on a product recall for mislabeled crab soup found in Whole Foods. I asked Dave for an easy explanation of FDA labeling rules, in a crab-shell:
Last week FDA and Blount Fine Foods announced a voluntary recall of Rip Roar’N Crab Soup because the soup label lacked an allergen statement saying “Contains Crab.” The back labels were mistakenly replaced with “Manhattan Clam Chowder” labels so the ingredient listing and allergen statements did not match. However, the result was that Crab Soup correctly labeled on the front still required the allergen statement with the ingredients listing. How could that be?
In 2004, Congress passed the “Food Allergen Labeling and Consumer Protection Act” (Public Law 108-282) requiring that food manufacturers label products containing 8 major allergens: milk, eggs, wheat, fish, crustacean shellfish, tree nuts, peanuts, and soybeans. The law requires that the common or usual name for each of the allergens be listed in the ingredients or in a separate statement starting with “Contains.” 21 U.S.C. § 343(w)(1).
FDA takes allergen labeling very seriously. Recent FDA Warning Letters to food manufacturers involve allergen labeling errors, commonly associated with seafood and bakery products. What happens if the product does not have the allergens labeled? FDA considers the product “misbranded,” one of the two big violations of FDA law along with “adulteration.” Misbranding can result in warnings, costly product recalls, and over time, fines and imprisonment. 21 U.S.C. 333. Just because an ingredient is in the product title doesn’t mean you have satisfied the regulatory requirements. While it seems a bit redundant to separately tell consumers that Crab Soup does in fact “Contain Crab,” it’s better to overcommunicate than risk FDA coming after you.
