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It has been a busy couple of weeks for the Food and Drug Administration (FDA), with two important announcements coming out that affect the labeling of food and beverage products.

On May 25, the FDA issued a Guidance for Industry announcing its view that the term "evaporated cane juice" is unnecessarily confusing and its recommendation that the term no longer be used. The FDA's renunciation of the term stems from its finding that "evaporated cane juice" does not accurately describe the basic nature of the food and its characterizing properties. The agency stated that the phrase creates unnecessary confusion by suggesting that a product that is "essentially sugar" contains fruit or vegetable juice. It reasoned that the presence of the term "juice" in the phrase "evaporated cane juice" falsely suggests to consumers that the sweetener is a form of juice derived from fruits and vegetables.

Food manufacturers and sugar cane producers have recently taken to using the term "evaporated cane juice" to describe sweeteners derived from the fluid extract of sugar cane. Federal regulations require that a common or usual name describe a food's basic nature, ingredients, or characterizing properties in as simple and direct terms as possible. In the Guidance, the FDA announced that it does not consider the term "evaporated cane juice" to be a common or usual name for any type of sweetener.

Although nonbinding, this Guidance from the FDA serves as a pronouncement of the agency's thinking that the term "evaporated cane juice" is misleading to consumers. Food product manufacturers and producers would be prudent to avoid using the term in future labeling, and should instead heed the FDA's recommendation to use the term "sugar" in combination with a "truthful, non-misleading" descriptor that differentiates based on source, color, flavor, or crystal size. The use of terms found to be misleading to consumers puts manufacturers and producers at risk for not only regulatory action by the FDA and FTC, but also civil liability in litigation brought on by the FTC and plaintiffs' lawyers looking to generate high volume class actions.

The FDA's recommendation regarding the term "evaporated cane juice" comes on the heels of another important revision of food labeling requirements. On May 20, the agency announced that it would refresh the design requirements of the iconic nutritional facts label included on most packaged food and beverages. The look of the label, which has been an ubiquitous presence on grocery store shelves for decades, will largely remain the same; however, the agency has introduced some key changes aimed at ensuring consumers "have access to the information they need to make informed decisions about the food they eat."

The design changes are twofold. First, the FDA is requiring that manufacturers comply with several aesthetic changes to the label's design in order to highlight certain information. Manufacturers must increase the type size for a number items featured on the label, including "Calories" and "Serving size," alter the language included in the footnote explaining what percent Daily Value means, and feature certain other items in bold.

Second, the overhaul requires substantive changes. Manufacturers must now include "Added sugars" in grams and as a percentage of Daily Value, provide an expanded list of nutrients, and update the daily values requirement and serving size based on newer scientific evidence. Manufacturers of both imported and domestically produced foods and beverages will need to comply with the changes by as early as July 26, 2018, with some exceptions.

If you have any questions about these recent announcements regarding the regulation of labeling on food and beverage products, please contact your Nutter attorney or any member of Nutter's Food & Beverage practice group.

This advisory is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.