r process claims such as “cage-free,” “grass-fed,” “free range,” “naturally raised,” and many others.
Second, even with a defined standard, substantiating Process Labeling claims can be challenging, especially for large-scale operations with far-flung suppliers. Adequate substantiation requires supply chains operating under strict control, with rigorous oversight and continuous monitoring. The food producer must maintain strong and transparent supplier relationships and check in frequently to assure that the operation is running as agreed and without errors or gaps. Independent verification is helpful, and producers can obtain that kind of help from the USDA’s Agricultural Marketing Service, which provides a wide variety of independent verification services through its Process Verified Program (“PVP”), a voluntary, user-fee-funded program. The PVP uses highly trained auditors to conduct inspections, review processes and documentation and thereby assure that a producer is adhering to the standards supporting the process claim.
Third, Process Labeling can send inferential messages about health or well being that can be highly misleading without prominent disclaimers or other disclosures. The Federal Food, Drug, and Cosmetic Act (“FFDCA”) provides that a food is misbranded if its labeling is “false or misleading in any particular.” The FFDCA has long been interpreted as holding a producer strictly accountable for the claims made in labeling. This includes accountability for omissions, as the FFDCA empowers FDA to find a label misleading if it fails to reveal facts that are “material” in light of the representations that are made for the product.
GMOs are a case in point. A recent consumer survey concluded that an overwhelming majority of consumers worldwide think non-GMO foods are healthier than foods made with GMOs. However, FDA has found no scientific basis to require labeling because GMO foods are safe and not materially different from non-GMO foods. Now consider whether the following claims should appear right alongside each other on a food’s principal display panel:
Healthy / Non-GMO
Is this lawful? Or does the implication that non-GMO foods are healthier violate the FFDCA by failing to disclose the scientific consensus that GMOs are safe and that avoiding them does not brings a health benefit? Information necessary to avoid misleading consumers should be provided at the point where the claim is made. In this case, the label should have noted the FDA’s position on the same panel, or at least on an adjoining one.
Process Labeling can inform consumers about the origins of their food and the methods by which it was produced, and in doing so promote a sense of interconnectedness and a better understanding of agriculture. However, such labeling requires clearly defined standards and significant investments in supply chain oversight and monitoring. Process Labeling claims can mislead consumers about benefits where none exist.
The CAST panel, while seeing the upside of Process Labeling, recommended strict regulation. Labelers should explain the scientific significance of the process (“GMO corn for reduced pesticide use”) and disclose when there is no benefit (“rBST-free / No significance difference has been shown in milk from non-rBST cows”). Such standards of care can certainly help unlock the potential of Process Labeling to educate consumers and help them feel just a bit closer to their world and the ways in which their food is made.