Where Is The Love?

Pancakes on heart shaped griddle

On September 22, 2017, the U.S. Food & Drug Administration (“FDA”) issued a warning letter to Nashoba Brook Bakery for what it puts into its granola: love. The FDA was not impressed, coolly advising that “love” is not a common or usual name of an ingredient. Now, before you write the FDA off as a “hater,” let’s consider the role that food labels serve.

The primary role for food labels is to provide consumers meaningful information about a food so that they can understand what they are about to put into their bodies. Mandatory label statements include the name of the food, the amount of product in the package/container, the name and address of the manufacturer, packer or distributor, the ingredient list, nutrition labeling and any required allergy disclosure. To ensure that a consumer can readily understand a food’s attributes, the FDA requires that manufacturers always list the common or usual name for ingredients unless there is a regulation that provides for a different term.

The FDA’s strict stance on fastidious compliance with food labeling, though, should not be dismissed as an example of bureaucrats with no senses of humor. The FDA’s mission (one might even call it a passion) is to protect consumers’ health and safety. Even a cursory review of the warning letter to Nashoba Brook Bakery clearly reveals that listing “love” as an ingredient was just one of many other serious violations, including the failure to maintain the bakery in a sanitary condition.

In truth, with a better understanding of the regulations applicable to food labeling, love is not lost for Nashoba Brook Bakery. Food labels can, and often do, carry optional statements known as “romance copy.” (You didn’t see that coming, did you?)  Romance copy is comprised of the statements extolling the virtues of a product, or providing the backstory on the manufacturer. If there is any place on a label for an expression of love, that’s where this food attorney recommends food manufacturers make it. Put “Made with Love,” “Filled with Imagination,” “Packed with Magic,” or “Created with Passion” in the romance copy, just don’t list love, imagination, magic or passion as an ingredient.

Published by Bill Acevedo

I am the Chair of Wendel Rosen LLP's Green Business Practice Group, and I am the Co-Chair of my firm's Food and Beverage Group. My practice focuses on manufacturing and food, dietary supplement and cosmetic companies. I provide outside general counsel services to my clients, which include: entity formation, business and legal advice on proposed business transactions, general contract negotiation and drafting, brand and licensing protection, corporate governance, capital raises, and M&A transactions. Additionally, I assist my clients with labeling, advertising, and FDA regulatory compliance matters. In addition to my corporate transactional practice, I handle all manner of business litigation, such as labeling/advertising claims, contractual disputes, trade secret matters, partnership disputes, product liability claims, director and officer liability, and unfair business practices claims.

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