The new label blues

Canada is at the beginning of implementing food labelling modernization, yet more is already on the horizon.

In December 2016, significant amendments were made to the Canadian Food and Drug Regulations (FDR) related to ingredient, allergen and nutrition labelling. Those amendments initiated a five-year transition period that ends on Dec. 4, 2021. Within the transition window, the Canadian Food Inspection Agency (CFIA) and Health Canada (HC) hope to complete further food labelling modernization. HC is continuing its consultation on front of packaging (FOP) nutrition information of saturated fat, sodium and sugar. Foods affected by FOP will be facing significant design modifications, and it will not be easy to implement. The new FDR is also more technically demanding, including in how information is to be displayed on a label. Because of this, many companies are waiting to make major label design changes until more is known about other food labelling changes. Further changes will require formal traditional regularity amendments involving proposed regs in Canada Gazette I and final regs in Canada Gazette II.

It has been almost a year since the FDR was amended, and both industry and HC are using this initial period to grow into them. Currently HC is fielding questions on the new regs. This will be handed over to the CFIA sometime in early 2018, at which time we also expect to see more guidance on the new labelling rules. One challenging aspect of the new regs that will impact ingredient labelling, is figuring out what sugar-based ingredients are, and in particular those that may be captured as a functional substitute for a sweetening agent. When the new rules and definitions are applied to real examples, many questions arise. How does one manage and declare sugars-based ingredients in a second- and third-generation listing? Technically, third-generation ingredients are not captured for declaration, but if they are included voluntarily how are they declared?

The new rules on serving sizes are also very prescriptive. This has generated an enormous amount of questions. Essentially, the regs expect a food to be found in the Table of Reference Amounts for Food, associated with a reference amount and a prescribed way of declaring a serving size. Realistically, it is impossible to predict all possible scenarios related to serving sizes in advance. There are many changes needed to the Table of Reference Amounts for Food. Fortunately, the latter table is incorporated by reference by the FDR. Reference amounts had previously been codified in Schedule M-FDR. It is more efficient to amend documents incorporated by reference than those codified regulations. Despite being incorporated by reference, such documents are law, and must be respected as such.

Of concern in the new FDR are elements that impact the space required for labelling and design considerations. The ingredient list must now be located on a single continuous surface of the available display surface (ADS). The FDR permits nutrition facts under certain circumstances to be on the bottom of a container, but not the ingredient list. The ingredient list under the new FDR must be presented in black or equivalent to black type on a white or neutral background with no more than a five-per-cent tint in colour. The use of letter case, line spacing, bolding, punctuation and separation from other information is now subject to detailed requirements. The line spacing, letter height and use of condensed typefaces is linked to the nutrition facts table (NFt). Where an NFt is required to display nutrients in an eight-point type, the type height and line spacing for ingredients will be required at the largest prescribed size. This generally coincides with packages with a large ADS, but regardless, an ingredient list, particularly if it is a long one, will occupy more space. Certain non-consumer prepackaged foods are excused from the white background consideration. Packages with less than 100 cm² ADS are excused form bearing a NFt, but must include a list of ingredients unless other exemptions apply. However, in that case the label would require a toll-free telephone number or address for consumers to contact the manufacturer for nutrition information.

The new NFt formats generally do not occupy more space, and in some regards they are more accommodating. This is generally the case for smaller and single-serving packages. The new narrow standard format is, however, a bit wider than before. That is posing a challenge in the case of transitioning labels where the narrow NFt currently just fits on a side panel. If the new narrow NFt does not fit, then another label location (and major design changes) may be needed. New daily values can also result in changes in how the percentage daily values are calculated, which can influence compliance with nutrient content claims.

There is one certainty about the new regs – everyone in industry will be very busy over the next few years. If you already have the label blues, be prepared as more is coming!

For more information, or to reach Gary, visit www.legalsuites.com