At The Food Institute's (Elmwood Park, N.J.) Food Labeling Seminar held during March in Newark, N.J., Robert Hahn of Olsson Frank & Weeda PC (Washington) explained that there likely will be leniency with this type of labeling through the first six months (after January 2006, when trans fat labeling is required). However, attendees said some major retailer chains were threatening to take products off the shelf if trans fat is not declared--and declared in a way that actually exceeds the FDA requirement in some cases. For example, members of the audience explained that some supermarkets are insisting on trans fat declarations appearing as a separate line item within the Nutrition Facts box--even if the label is fully compliant with a shortened or simplified format that qualifies either to omit trans altogether or list it as part of a “Not a significant source of” footnote--and vowing to discontinue products unless they meet this additional self-imposed measure.

Trans fat labeling on meat and poultry products, though the regulations only apply to FDA-amenable items, has become another industry expectation with a limiting twist; trans fat databases for meat and poultry are a work in progress. The Food Safety & Inspection Service (FSIS) of the U.S. Department of Agriculture (USDA) has published a guidance document, has not yet implemented formal rulemaking about trans fat declarations for foods under its jurisdiction.

“Retailers are getting inquiries, and 'Stores want to avoid questions if it's not there,'” seminar participants commented. “Necessary or not, (manufacturers should) have the line on there,” many concluded, though other attendees questioned why a retailer should demand more than what the government requires.

Leah McGrath, RD, LDN, dietitian for Ingles Markets (Asheville, N.C.), a regional supermarket chain in the southeastern U.S., can understand why grocery stores might want it that way. “People are looking for 'trans' (labeling) and want to see it,” she explains. “They question when it is going to be on the label, why it is not on the label, why (manufacturers) are trying to hide it. We put on the shelf what consumers will buy, and trans fat (declaration) is big right now.”

Wild Oats Markets (Boulder, Colo.) reports quite a few inquiries about trans fat, questions about levels in products and when all the labeling will be done, but it is not demanding its vendors go beyond FDA requirements for trans fat labeling. It told its private label manufacturers and suppliers that hydrogenated oils were no longer permitted as of February 2004. Mary C. Mulry, Ph.D., senior director of research, development and standards for Wild Oats at the time of the conference, offers the following caveat to consumers: a product can list partially hydrogenated soybean oil while containing up to 0.5g of trans fats but still show a label value of 0g; so, it is important to read the ingredients list on every product purchased.

Liz Thomas of Thomas & Company (Blue Bell, Pa.), a consulting firm specializing in small- to medium-sized food companies and start-ups for the gourmet and specialty trade, advises clients to label trans fat the way retailers want it. “Companies are scrambling to do what retailers want because they have the upper hand,” she cautions, “and even if you are legally exempt, you are not exempt in the consumers' eyes.”

Some companies and retailers are resolving the issue with a separate “0 grams trans fat” statement on applicable labels and, although absolute factual statements are acceptable, any variation can become risky, because trans fat nutrient content claims currently are not permitted.

“It is the 'real world',” an attendee emphatically exclaimed. “Come January 1, 2006, major retailers will demand allergen and trans labeling, and it will be all over the news. Either have it, or we do not want your product!”

The actual “trigger date” criteria for trans fat labeling compliance is the product's initial introduction into interstate commerce--regardless of when an item was produced or labeled. However, industry experts concede there really is no exhaustive criteria for what exclusively delineates “introduction to interstate commerce.”

Allergen Labeling

The Food Allergen Labeling Consumer Protection Act (FALCPA) requires foods labeled or produced on or after January 1, 2006, to state clearly the commonly known food names for the top eight allergenic ingredients or their derivatives--i.e., “semolina” must be further identified as “wheat” in the ingredient list by either parenthetically listing “wheat” next to “semolina” or stating “Contains Wheat” immediately adjacent to the ingredient list. Flavors, colors, spices, incidental additives and their associated components also are all subject to the new law.

Because FALCPA is a self-executing law, FDA regulations are not necessary, and variations in industry implementation have ensued. Wild Oats Markets hopes most companies would do what it believes is the best option: using a big, clear, bold, obvious “Contains_____” statement, instead of simply listing the allergen's common food name in parentheses within the ingredient list. Many of its shoppers have allergies, and “That's why they shop here,” say Dan Heiges, director of product standards, and Sonja Tuitele, director of corporate communications.

However, variations in applying the law are raising concerns. For example, if a food manufacturer, particularly a category leader, chooses to label both a parenthetical common food name next to the allergenic ingredient and a separate “Contains (allergen)” statement at the end of the ingredient list, consumers easily could assume they need only check for the optional “Contains” statement at the bottom, instead of also always checking each ingredient within the list thoroughly, perhaps erroneously concluding that the food is allergen free.

Though investigating the matter for possible future restrictions, the FDA currently does not object to “May Contain” or “Made in a Facility…” or “In Equipment …” statements, as long as these are not used in lieu of Good Manufacturing Practices (GMPs). Widespread use of such labeling is discouraged, because it could unnecessarily further limit food choices for allergy sufferers, including sudden avoidance of foods they may have previously enjoyed without a problem, such as “lecithin” in a product changed to a “soy lecithin” listing.

Such precautionary statements are drawing mixed reviews. Citing Food Allergy and Anaphylaxis Network (FAAN) and FDA samplings of 25 to 40 different allergen label warnings, “'May Contain' or 'And/Or' labeling is bad,” asserted Julie Nordlee, MS, clinical study coordinator, Food Allergy Research & Resource Program, University of Nebraska-Lincoln, during her presentation at the “Food Intolerance, Sensitivity, Allergy: Diagnostic and Treatment Challenges” session at the American Dietetic Association's (ADA, Chicago) 2004 annual Food & Nutrition Conference & Expo (FNCE).

Yet even specific wording can influence consumers differently. Hahn drew from surveys that found: “People with food allergies are more likely to pay attention to 'may contain.'” “They take it more seriously than 'Made in …' or 'Processed on …' labels, where they might, depending on the severity of their allergy, take their chances.”

FAAN's study showed a likelihood for some food allergic consumers to be overly cautious. For example, soybean oil or soy lecithin appears to carry little risk for soy-allergic individuals; however, 40% of those surveyed avoid these ingredients. Dietitians and consumers often discover that food company call center staff--when unsure about ingredients--will advise consumers simply to avoid the food. FAAN believes that with compliance to the new law, food companies likely will see a decline in food allergen consumer calls, as consumers realize they can rely on the label.

The 11 million Americans with food allergies, their family members, caregivers, daycare providers, schools or anyone involved in their food shopping, preparation or storage have created a market for food allergy and intolerance products projected to reach $3.9 billion by 2008, according to “The U.S. Market for Food Allergy and Food Intolerance Products,” May 2005 report by market research publisher Packaged Facts (New York). These are obvious candidates for allergen-customized, dietitian-conducted grocery store tours--efforts to meet the rapidly emerging needs of this expanded population segment. The FAAN-cited study found that for 86% of those surveyed, labeling strongly influenced product brand choice. Food allergy online groups and blogs also are havens for flourishing viral marketing, because information is shared easily about non-compliant as well as recommended products.

“Consumers want a product option for every category on the shelf,” said Blanca Hernandez, marketing manager, the Hartman Group (Bellevue, Wash.) during her “Food & Nutrition Labeling: From a Consumer Perspective” presentation at the Food Labeling Seminar. “The top three items most important to consumers in food labeling are the ingredient list, nutrition label and content descriptors, e.g., 'wheat free.'”