Between product development and effective marketing is the murky, often confounding world of regulations.

A creative, cost-effective product formulation emerges from the test kitchen, the consumer panels are off-the-charts, and marketing is ready to showcase the new product using a claim that conveys an irresistible taste. From test kitchens, brand managers and advertising agency conference rooms, one question inevitably arises: How much of the ingredient/flavor must I add, and does it matter if I use the “real” ingredient or an artificial ingredient that delivers the same taste profile?

How Much?

Functionality and cost are but two of the many factors limiting the amount of an ingredient that might be added to a food. There is, for better or worse, no magic answer as to the minimum level of an ingredient necessary to justify a taste claim. Quantity does not correlate to taste, as is evident if one compares enzyme-modified cheese powder with cheddar cheese, lemon juice to apple juice or vanillin to vanilla extract. Two threshold determinations should be considered in evaluating whether a taste claim would be false or misleading: technical and sensory.

First, the merit of a taste claim should be evaluated based on what is known about the ingredient. Many flavor houses, ingredient vendors and in-house food scientists will often know the minimum level of an ingredient necessary to impart a given taste/flavor in a particular food. Second, it is prudent to conduct some form of objective evaluation to ascertain if the touted taste is recognizable in the finished product (e.g., expert taste panel, consumer testing).

How Do I Describe The Taste or Flavor?

FDA has a long-standing regulation that governs the appropriate terminology when identifying flavors on the food label (21 CFR 101.22(i)), one of the most complicated of all the labeling requirements. The rule is premised on the simple notion that consumers value “the real thing” versus a close substitute and should be able to rely on the label to readily distinguish between the two. This consumer protection objective is relevant to taste claims conveyed in advertising as well.

How a taste/flavor claim is communicated depends on the nature and contribution of the various ingredients that impart the claimed taste. For example, if there is enough of the characterizing ingredient to impart the characterizing, featured flavor/ taste, then no qualification is necessary. If other ingredients are added to complement or enhance the characterizing flavor, FDA requires various qualifying statements (e.g., “flavored,” “with other natural flavors”). How the flavor is identified in the claim also is critical to ensuring legal compliance (e.g., “strawberry” versus “strawberry flavor with artificial flavors added” or “milk chocolate” versus “chocolate coating”).

What Proof is Required?

When taste claims must be proven presents a vexing question that can only be addressed in the context of the specific product and the manner in which the claim is fashioned. Some claims, such as “great taste” or “cool and refreshing,” are “puffery,” but there is often temptation to view virtually any claim relating to taste as mere puffery. A taste claim that is capable of being objectively measured requires actual proof (e.g., enjoy the hickory smoked flavor of …). Whether the marketer goes beyond the validation suggested above depends on the nature of the claim and how it is conveyed.

Comparative taste claims will almost always have to be substantiated through consumer testing. There are many different forms of comparative taste claims—a claim of parity (“tastes as good as”) or superiority (“best tasting)--where no competitive product is mentioned or when a head-to-head claim is made comparing products X and Y. There are many ways to measure and validate a comparative taste claim, each with its own in limitations and advantages. Just remember, if marketers can prove the taste preference of cats (they can!) then be sure that support for a taste claim is considered and obtained in advance of making the claim.

Taste claims represent a product development and marketing triumph. An appreciation of the regulatory framework that governs such claims at the outset of a new product development or reformulation effort will ensure this success.

Steven Steinborn, Hogan & Hartson LLP, represents food and dietary supplement companies on a range of product development, marketing and regulatory compliance, and enforcement issues involving the FDA, the USDA, the FTC and Consumer Products Safety Commission. His e-mail is: SBSteinborn@HHLAW.com.