Serving sizes and mandatory labelling
When Canada introduced mandatory nutrition labelling (MNL) in 2002, the rules related to serving sizes were deliberately set up so that manufacturers could determine a reasonable serving size for multiple-serving food packages that related specifically to their products and customers. Single-serving food and beverage containers were always subject to specific rules based on the regulated reference amounts (RA) in Schedule M – Food and Drug Regulations (FDR). RA represent a quantity of food that is typically consumed by one individual in a single eating occasion. These amounts are established by Health Canada based on consumption data. RA are also being modernized to reflect more current data on the portions Canadians actually consume.
One misunderstanding about the current rules on serving sizes is the perception that they are not regulated, and are somehow manipulated to be able to make nutrient content claims. A serving size has to be “reasonable.” In that regard the Canadian Food Inspection Agency (CFIA) provided serving size range guidance to industry even before MNL. Such guidance can be found on the CFIA’s Food Labelling for Industry web pages, which were formerly in the Guide to Food Labelling and Advertising. The serving size ranges are not regulated. A serving size within the range provided by the CFIA would generally be considered suitable as long as it is reasonable for the food. A serving size outside this range is also possible, as long as it can be substantiated as reasonable for the food.
What is not generally well appreciated is that many nutrient content claims must also meet the requirements based on the serving of stated size as well as the applicable RA. Where an RA does not exist for a food – and there are a number of these scenarios – nutrient content claims that are qualified on RA cannot be made. In addition, the rules permitting a nutrient to be rounded to zero, like trans fat, are based on the food meeting the criteria for nutrient content claims, based on the serving size as well as the RA.
U.S. serving size rules have always been tied far more closely to the regulated reference amounts customarily consumed (RACC). A serving size in the U.S. does not necessarily have to equate to the exact RACC. There are explicit rules defining how the RACC are to be used to determine the actual serving size. The trade-off here is for greater standardization over perhaps a more accurate view based on the actual consumption amount of the food. For example, a salad dressing in the U.S. would have a serving size based on the RACC of 30 g. In Canada a manufacturer could use a serving size of one tablespoon (about 15 mL) for a very favourable dressing where this is reasonable for the product, despite the RA being 30 mL. American and Canadian RA are also not all alike.
Health Canada has proposed that it move away from the more flexible approach of reasonable serving sizes to a system more like, but not identical to, the U.S. model. Canadian consumers are generally confused and do not really understand why there is variance. In addition, consumers generally seem to prefer standardization so they can more easily compare similar foods. It’s hard to argue that simple is not the better way to go. It also fits in well with Health Canada’s greater emphasis on the overall diet of Canadians than on individual foods.
The change that Health Canada is proposing would see foods in non-discrete units, like yogurt, having a serving size based on the RA (for example 175 g). Foods measurable by volume should conform readily to having a serving size that very closely approximates the RA. For foods in discrete units such as cookies, the serving size would be based on the number of cookies that most closely approximates the RA. So if six cookies at a total of 28 g is the closest approximation to the RA of 30 g, then a serving is based on “six cookies (28 g).”
Health Canada is also considering in certain cases basing a serving size on a consumer friendly household measure, as opposed to the RA. For instance, Health Canada states that foods like sliced bread are typically consumed as two slices. Thus, the serving size would be based on two slices, and the weight thereof, despite a RA of 75 g (as proposed). The ministry is just now wrapping up its consultation on nutrition labelling modernization. Proposed regulations are the next steps. It will likely take a number of years before the changes come into effect, but it is reasonable to conclude that changes to serving size rules will be coming.
Gary Gnirss is a partner and president of Legal Suites Inc., specializing in regulatory software and services. Contact him at [email protected]