Since March, snack food company KIND Snacks has been facing scrutiny over the labeling of its products. The company has built its brand on its use of natural ingredients in healthy snack products, but according to the U.S. Food and Drug Administration (FDA), several of their bars shouldn’t be called “healthy” at all. KIND agreed to make changes to the labels in breach, but is also politely asking the FDA to update its rules.
The fuss stems from a Warning Letter addressed to KIND CEO Daniel Lubetsky. The FDA reviewed the labels of four KIND snack bars in August 2014 and related website content in October 2014, and determined that “the product labels [bore] nutrient content claims, but the products [did] not meet the requirements to make such claims.”
Specifically, the term “healthy” may only be used when a food has 1 gram or less per serving and that no more than 15 percent of its calories are from saturated fat. The four bars in question contained 2.5 to 5 grams of saturated fat per 40 grams of the food. Some of the bars were therefore also in breach of the requirements for making a “low fat” claim on their labels – 3 grams per serving is the FDA’s limit. In addition, in order to claim that a product is a “good source of fiber,” the product must either also be “low fat” or note that it is not low fat in immediate proximity to the fiber claim.
The FDA also took issue with KIND’s use of the “+” sign, noting that “plus” may only be used to describe a higher level of nutrient content compared to an appropriate reference food and that the comparison much be noted on the packaging. Similarly, companies may only claim that a product is “antioxidant-rich” or “high in antioxidants” without containing certain amounts of vitamins as a proportion of their daily intake – a requirement which one of the bars did not meet.
KIND’s stated that it would “quickly comply with [the FDA’s] request,” as well as conduct a review of its other labels to ensure compliance across its portfolio. It also explained to customers that the breaches were primarily related to the nut contents in their bars and referenced recent news and research touting their nutritional benefits.
But the company didn’t stop there. Lubetsky decided to submit a Citizen Petition to the FDA in December to “respectfully urge” the organization to update their labeling requirements to make them consistent with current federal dietary guidelines. Signed by 16 experts, including nutrition professionals and doctors, the petition notes that the 2010 and 2015 Dietary Guidelines for Americans highlight the importance of eating certain foods, including nuts and seeds, in contrast to prior federal dietary guidance which emphasized specific nutrient levels.
“It’s critical that the FDA reconcile and update these regulations so that they conform to what we now know to be true about healthy eating,” David Katz, a senior nutrition adviser to KIND, one of petition’s signers, and founding director of Yale University's Yale-Griffin Prevention Research Center told Inc.. “There are some very nutritious foods that are part of optimal diets – including nuts, avocado and salmon – that may have a high inherent fat content.”
Lubetsky says he has no ill against the FDA and simply wants the rules to be updated in accordance with today’s nutrition science. “The people who work at FDA are just trying to do their jobs,” he told The Guardian.
In connection with the petition, the company also released a blog post further explaining the discrepancy between the FDA requirements to use the term “healthy” and what we now know to be part of a healthy diet. The post including an image explaining, “Under the current regulations*, foods like almonds, avocados and salmon cannot be labeled with a “healthy” nutrient content claim because they exceed total and saturated dietary fat limits per serving. However, under the requirements some foods like certain sugary cereals, fat-free chocolate pudding and low-fat toaster pastries can be labeled as “healthy.””
The fine print reads:
“* U.S. Food and Drug Administration Code of Federal Regulations Title 21, section 101.65(d)
“** Based on one serving size
“The above chart is meant to illustrate which foods, in accordance with the U.S. Food and Drug Administration regulations, meet the standards for use of the word healthy as a nutrient content claim in food labeling. The images shown are generic and not intended to spotlight any one company or brand. Further, the intent is not to suggest the foods listed in the “DOES MEET” section are not necessarily being marketed as healthy.”
“[The] FDA is unlikely to take action based on one company’s request,” lawyer and food policy expert Michele Simontold The Guardian, in reference to the KIND petition. “If they had teamed up with the rest of the nut industry, or the olive oil or avocado industry, they’d have had a better chance.”
At the very least, the company may save face by taking this approach. Unfortunately, they are also facing a class action lawsuit from two Californian plaintiffs on the basis of the FDA Warning Letter. The lawsuit seeks at least $5 million in damages on behalf of customers who purchased KIND bars “under the mistaken belief that [the] products were healthier.”