Regulatory Issues: Nutrition labeling moves north of the border
Canada now joins the U.S. in a small fraternity of countries that require labels to disclose the nutritional content of foods
Among Canada's 47 defined nutrient content claims, there are likely to be some minor differences between U.S. and Canadian criteria.
Canada's new regulations introduce five permitted health claims that may appear on food labels. For the most part, these claims may be characterized as "risk reduction" types. The permitted claims specifically relate to the associations between (1) a diet high in potassium and low in sodium and a reduced risk of high blood pressure; (2) a diet with adequate calcium and vitamin D and a reduced risk of osteoporosis; (3) a diet low in saturated and trans fats and a reduced risk of heart disease; (4) a diet rich in a variety of vegetables and fruit and a reduced risk of some types of cancer. In addition, statements such as "does not promote tooth decay" are permitted on certain sugar-free confectionery items.
For the most part, these five claims are a sub-set of the health claims currently authorized by FDA. Canada examined the FDA-approved health claims and decided not to permit all of them, at least not initially. Thus, Canada appears to be taking a more restrictive approach to health claims. FDA's approach has been affected recently by legal challenges under the free speech guarantee of the First Amendment to the U.S. Constitution. Canada's policies regarding health claims on food labels are obviously not affected by the U.S. Constitution and the commercial speech doctrine developed by U.S. courts. Thus, while the U.S. appears to be headed toward more liberal use of health claims on food, Canada may not be joining it anytime soon.
One day, the U.S. and Canada may work toward harmonizing their food labeling requirements. A worthwhile objective of such an effort would be to allow food manufacturers in each country to develop a single label that would be legally acceptable throughout the combined territory of the two countries. This objective could be accomplished in more ways than one. The regulatory authorities in both countries could sit down and iron out the minor differences in the nutrition labeling rules. For example, a single set of RDIs for nutrients could be agreed upon. Alternatively, a "mutual recognition agreement" could be reached, whereby each country would agree to permit the marketing of prepackaged food that originates in the other country and is labeled in compliance with the requirements of that country.
In any event, U.S. manufacturers planning to market products in Canada will need to provide bilingual French/English labeling, a sensible requirement that certainly won't go away any time soon. If the label is required to disclose high fat content, that might not sound good in either language.
DAVID JOY is a partner at the Washington DC law firm of Keller and Heckman LLP. He specializes in food and drug law with emphasis on the domestic and international regulation of food, food additives, food labeling, antimicrobial pesticides, and medical devices. He is a member of the District of Columbia Bar and holds a bachelor's degree in chemistry. For more information about Keller and Heckman, visit the firm's web site at www.khlaw.com.