Putting Out a Call On Added Sugars

Oct. 26, 2015
Where will the FDA end up on 'added sugars' on the new Nutrition Facts Panel?

As we await the 2015 Dietary Guidelines, one of the concerns voiced in the Dietary Guidelines Advisory Committee's (DGAC) report in January of this year was the excessive amounts of sodium, saturated fats and added sugars consumed in the average diet and how they contribute to chronic diseases and to America’s obesity epidemic. Accordingly, the DGAC “supports efforts in labeling and other campaigns to increase consumer awareness and understanding of sodium, saturated fats and added sugars in foods and beverages.”

Jamie Robinson is a partner with Nixon Peabody LLP, and is based in the firm's Chicago office. Jamie is a member of the firm’s food, beverage & alcohol team and is a litigator who handles matters in both state and federal court, as well as at the appellate level. Jamie can be reached at [email protected].

In March 2014, before the DGAC's report was published, the FDA proposed new regulations that would update the nutrition facts panel (NFP) located on the back of most packaged foods, which consumers have utilized in buying foods for the past 20 years. Some of the specific proposed changes include: eliminating vitamins A and C from the NFP and adding vitamin D and potassium; eliminating calories from fat; and updating serving sizes and the amount of servings per package or container.

There doesn’t seem to be much controversy surrounding the need for an updated label. The existing NFP is more than 20 years old, based on information from the 1970s and 1980s and only updated in 2006 to add trans fats. But one controversial suggested change is the addition of “added sugars.” While the 2014 proposed rules required the NFP to include “added sugars,” this July the FDA proposed a supplemental rule, based in part on the findings of the DGAC, which would require the NFP to contain not only the amount of added sugars, but also the percent daily value (%DV) for added sugars.

The percent daily value is based on the recommendation that the daily intake of calories from added sugars not exceed 10 percent of total calories. This means that an average adult with a 2,000 calorie diet should not exceed 200 calories a day from added sugars. Stated another way, if a teaspoon of sugar has approximately 16 calories, then an average adult’s daily allowance of added sugar would be approximately 12 tsp.

So let’s look at an example. If a 20-oz. bottled drink contains 16 tsp. of sugar and if all of this sugar constitutes “added sugar,” the NFP would need to state that the beverage supplies approximately 130 percent of an average adult’s daily allowance. This is not out of the ordinary for carbonated drinks, which can range from 2-13 tsp. in just 11 oz. or 325ml.

As expected, the proposals regarding “added sugars” have generated several comments on the FDA’s website from a variety of companies, industry groups and associations. Because the supplemental proposed rule was promulgated just a few months ago, many companies and associations requested additional time to submit comments, but these requests were denied by the FDA.

Nevertheless, some of the previous concerns raised with showing “added sugars” on the NFP are that the label would not account for the types of sugars added, that sugars added may not be equivalent to the amount of sugars that end up in the product due to fermentation or other chemical processes, that some added sugars may be more beneficial than the existing sugars, that this may be confusing to consumers and that, in many cases, the amount of sugar added is dependent upon the quality of the raw food product at issue and varies by batch. Significantly, some groups question the scientific evidence behind the proposed change.

The comment period just recently closed for the proposed changes. It seems clear that when the FDA issues its final rule, “added sugars” will be part of the new NFP. It is less clear exactly where the FDA will end up on the specific requirements related to “added sugars” and whether this information will be beneficial and helpful to consumers or simply an issue of consternation for food companies.

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