Comments to the Food and Drug Administration on U.S. Nutrition Innovation Strategy

Val Giddings November 12, 2019
November 12, 2019

The Food and Drug Administration is to be commended for recognizing the importance to consumers of sound nutrition information, and for proposing “a comprehensive, multi-year FDA Nutrition Innovation Strategy that is designed to improve healthy dietary behavior and help reduce preventable death and disease related to poor nutrition” in service to that objective. In presentations at the September 27 meeting, FDA laid out the history of food and drug laws Congress has passed to ensure consumers have accurate nutritional information and are protected from deceptive business practices. Much of the policy conversation concerned issues associated with standards of identity (SOI). Yet in the voluminous documents prepared before and derived from the September 27 public meeting FDA seems to ignore the most salient example of abuse of SOI being used to mislead consumers today: the “NonGMO” label that has become widespread in recent years, now featured on allegedly 60,000 food products. The NonGMO label promulgated by the NonGMO project is the most egregious example of a misleading “absence claim” label (others include the “gluten free” claim on foods with no ingredients containing gluten). This was pointed out to FDA during the September 27 meeting by the National Milk Producers Federation.

It has been demonstrated that the NonGMO label has no basis in science, is inescapably misleading, and clearly violates the laws Congress has provided to empower FDA to protect consumers. It is therefore not possible to establish a SOI for “GMOs” that would illuminate the invalidity of the “NonGMO” label. But FDA’s reticence on this has allowed the NonGMO Project and those companies that have chosen to be their accomplices to deploy the NonGMO label as a de facto SOI and in so doing mislead and defraud consumers.

Congress has historically recognized the general need for FDA to prevent misleading labels of this sort, and provided both instructions and funds to address the issue through the “Agricultural Biotechnology Education and Outreach Initiative; Public Meetings; Request for Comments” of 2017. FDA has recognized the improprieties intrinsic to the NonGMO project label and provided guidance on the topic that makes it clear such labels are inescapably misleading and therefore illegal. And yet the NonGMO project continues to flaunt the law.

It is past time for FDA to take action to terminate the ongoing deception and exploitation of consumers by corporations that use such misleading labels in their marketing campaigns. Enforcement action is clearly overdue.