There are already some exceptions in place: manufacturers with under $10m in sales have an extra year to comply, while most single-ingredient sugars (i.e. honey, maple syrup) have an extra 18 months, according to the FDA.
Some dried cranberry producers were already granted a six-month extension.
The FDA confirmed this news with BakeryandSnacks, but cautioned in referring to it as ‘enforcement discretion,’ as scripted in a September 30 letter from the Food & Beverage Issue Alliance.
“We will work cooperatively with manufacturers during the first six months following the January 1, 2020, compliance date,” a spokesperson told us, adding the formal compliance date remains the same. “We expect manufacturers to meet the requirements, but FDA will not focus on enforcement actions. We received several requests for more time and believe that a cooperative approach toward meeting the requirements will lead to good compliance.”
The agency encouraged manufacturers to review existing guidance for the new labels, which at its core, has not changed.
Goods labeled before January 1, 2020 are not required to carry the new label, but past that date, where a product sits in the supply chain is irrelevant, according to the FDA. The agency said it does not object to supplementing existing labels with a sticker of the revised nutrition – but only temporarily, while awaiting the arrival of fully compliant labels.
ABA says...
“The baking industry has always been transparent with its customers and consumers," said ABA president and CEO Robb MacKie.
"Product labeling is an important component to helping customers and consumers to make informed choices about the products they buy to feed their families. ABA is pleased our members will be given more flexibility in order to meet the new labeling requirements.”
ABA, International Bakers behind the request
ABA – after learning that as much as 30% of its membership could benefit – joined a dozen trade groups in lobbying the FDA for this relaxed enforcement.
The formal request outlined that extra time was ‘warranted’ because of the ‘magnitude of the task’ of replacing outdated labels, which, if used for a time in 2020, would not pose serious risk in misleading consumers. Volatile inventory levels and the environmental costs of disposing of old labels also complicates the replacement period, it said.
The letter urged the FDA to approach enforcement of the new nutrition labels as it had for the Food Safety Modernization Act (FSMA). In other words, manufacturers desire that the agency gives companies the opportunity to justify their ‘good faith’ efforts to comply – or, though it would be cumbersome, review infractions on a case-by-case basis.
“We ask the FDA to recognize that additional time and flexibility is warranted when a company can provide a justification for why it has been unable to meet the compliance date for all affected labels,” the letter said, adding that businesses under the $10m threshold should also be granted six months past their 2021 deadline.
Groups including the American Frozen Food Institute, the Corn Refiners Association, the International Dairy Foods Association, and the National Confectioners Association joined ABA in this particular request. The Independent Bakers Association and SNAC International also signed.
FDA previously approved extensions
After the final rule was published in 2016, a similar swath of trade groups asked for up to five years to meet the new guidelines – especially to simultaneously adhere to new US Department of Agriculture (USDA) rules for bioengineered foods.
The FDA bowed to its initial two-year window, adding 18 months. The letter expressed gratitude for that extension, acknowledging that “for many products, this amount of time has been sufficient to achieve the required changes;” however, full compliance would be impossible for ‘some small percentage of SKUs.’
The trade groups’ letter noted similar enforcement approaches for the FSMA as well as recent updated regulations for animal food, adulteration and produce safety.
Those examples were ‘novel for both the industry and the agency,’ it said, adding: “The nutrition labeling rules similarly involve novel issues related to new nutrients to declare, new recordkeeping requirements and complex calculations for nutrients.”