FDA Provides Temporary Flexibility for Nutrition Labeling of Certain Packaged Food due to COVID-19 Pandemic

From the FDA CFSAN updates.
FDA is issuing this guidance to provide restaurants and food manufacturers with flexibility regarding nutrition labeling so that they can sell certain packaged foods during the COVID-19 pandemic.   This guidance does not apply to foods prepared by restaurants. The guidance, due to the exceptional situation, has not been opened for preventive public consultation.
As a result of the COVID-19 pandemic, restaurants and food manufacturers may have food not labeled for retail sale that they wish to sell at retail.  For example, restaurants may have purchased ingredients that they can no longer use to prepare restaurant food and instead wish to sell to their customers.  To facilitate the distribution of food during the COVID-19 pandemic, the U.S. Food and Drug Administration today released a guidance document,  Guidance for Industry: Temporary Policy Regarding Nutrition Labeling of Certain Packaged Food During the COVID-19 Public Health Emergency, to provide restaurants and food manufacturers with flexibility regarding nutrition labeling of certain packaged food.
For restaurants that wish to sell packaged food to consumers directly, or to other businesses for sale to consumers, the FDA does not intend to object if the packaged food lacks a Nutrition Facts label, provided that the food does not have any nutrition claims and contains other required information on the label, including the following, as applicable:
  • a statement of identify
  • an ingredient statement,
  • the name and place of the business of the food manufacturer, packer, or distributor,
  • net quantity of contents, and
  • allergen information required by the Food Allergen Labeling and Consumer Protection Act.
For food manufacturers that have inventory on hand that is labeled for use in restaurants, the FDA does not intend to object to the sale of packaged food that lacks a Nutrition Facts label by food manufacturers, provided that the food does not have any nutrition claims and contains other required information on the label, including the following, as applicable:
  • a statement of identity,
  • an ingredient statement,
  • the name and place of business of the food manufacturer, packer, or distributor,
  • net quantity of contents, and
  • allergen information required by the Food Allergen Labeling and Consumer Protection Act.
Finally, if retail packaging for certain food products is unavailable, the FDA does not intend to object to the further production of food labeled for use in restaurants that is intended to be sold other than to restaurants until retail packaging is available. Although the guidance is being implemented immediately, it remains subject to comment according to the agency’s good guidance practices.
Separate from this guidance, FDA intends to work cooperatively with manufacturers for the remainder of the year regarding using updated Nutrition and Supplement Facts labels and will not focus on enforcement actions during this time.  FDA previously announced that it would do so for the first six months following the January 1, 2020, compliance date.

QeA EU Commission to EU Parliament – Allergens declaration on non pre-packed food

A useful reminder of the Commission on a principle that was not so clearly expressed into the legislation and still is not accepted by all the mass caterers and restaurants. See the last sentence in bold.

Question for written answer to the Commission – 5th June 2018 

Some of my constituents have alerted me to the fact that some Member States are apparently not requiring allergen information to be provided in restaurants and other food outlets. In order to determine whether these states are in breach of EC law, clarification is needed on the interpretation of Regulation (EU) No 1169/2011 on the provision of food information to consumers, which sets out the EU’s rules on consumer information on allergens in non-prepacked food.

On 13 July 2017, the Commission issued a notice updating allergen information requirements.

Under Article 9(1) of Regulation (EU) No 1169/2011, food business operators are required to provide allergen information, including for non-prepacked food.

Article 44 authorises Member States to adopt national measures concerning the means through which this information is made available. Member States are required to notify the Commission when such measures have been adopted.

Given that the regulation is being applied differently from one Member State to another:

  1. Is the Commission assessing the national measures in order to determine whether they are consistent with the meaning and purpose of the regulation and whether Member States have gone beyond the terms of authorisation granted to them?
  2. What are the criteria for assessing how well consumers are being alerted to the presence of allergens?
  3. Can Member States, in the context of their national measures, choose to disregard the obligations set out in Article 13 of the regulation in the case of non-prepacked food and provide allergen information only when requested by consumers?

Answer given by Mr Andriukaitis on behalf of the Commission – 16th July

Under Regulation (EU) No 1169/2011 on the provision of food information to consumers, Member States may adopt national measures concerning the means through which information on allergens on non-prepacked foods is to be made available.

In principle, all means of communication as regards the provision of allergen information are allowed to enable the consumer to make an informed choice, e.g. a label, other accompanying material, or any other means including modern technology tools or verbal communication (i.e. verifiable oral information). In this respect, the majority of the Member States have already adopted such national rules following their prior notification to the Commission.

In the context of the aforesaid notifications, the draft national measures in question have been evaluated by the Commission in the light of the relevant EU provisions, including Article 13 of the regulation.

In particular, it has been assessed whether the information on allergens is available and easily accessible, so the consumer is informed that the non-prepacked food raises issues relating to allergens and intolerances. In this context, it is not compliant with the EU legislation to provide allergen information only upon request by the consumer.

(Source: EU Parliament)