Recently, after seeing a photo of a Dick Taylor bar with a nutrition facts panel on it, I posted on Facebook asking how a company the size of the Mast Bros could possibly still qualify for a small business exemption from the 1990 Nutrition Labeling and Education Act (NLEA). With sales reportedly topping US$10M, a new 65,000sf factory under construction in the Brooklyn Navy Yards in NYC, a retail store in Williamsburg, a factory/store in the Arts District in Los Angeles, and who knows how many employees … how could the Mast Bros still be considered a small business?
As I learned after spending many hours poring over the regulations and reaching out to colleagues trying to make sense of the regulations, I learned that they probably do qualify for labeling exemptions for many, if not all of the products they make. I also learned that most small chocolate makers and confectioners are not filing for the exemption - and probably should be .
Disclaimer : IANAL - I am not a lawyer. This is my interpretation of the regulations. The analysis following should not be relied upon as reliable legal advice. You should consult a lawyer with experience with FDA labeling regulations. There are separate guidelines for foreign firms importing food products. Consult a lawyer.
Can YOU Qualify for a Small Business Nutrition Labeling Exemption?
Yes, Virginia, you are on the fast track to qualification if your company is incorporated in the US and it has an annual average of fewer than 100 FTE (full time equivalent) employees.
Any food company with an annual average of fewer than 100 FTE employees (seasonal employment can be higher) can claim an exemption for any product that is produced a) in small quantities and b) as long as the label: 1) does not contain any nutrition information; and , 2) does not make a health or nutrient/nutrition claim.
If a product fails either of the above two numbered tests, a nutrition label is mandatory – with only one exception [from the regulations]:
Foods in packages with available label space of less than 12 square inches (e.g. pack of gum), provided that the label provides a means for consumers to obtain nutrition information (e.g., address, phone number). However, if a nutrition or health claim is made, a nutrition label must be provided.
Statements such as “organic,” “sugar-free,” “gluten-free,” “dairy-free,” “soy-free,” and “non-GMO” are not likely to be considered health or nutrient/nutrition claims – but that depends on how they are worded. Sugar-free claims are subject to separate regulations. Statements such as “heart-healthy,” “high-fiber,” and “low-calorie” are likely to be construed as being either a nutrient content or health claim and would by definition require a nutrition facts panel on the label. It is not clear whether “paleo” (don’t get me started on how chocolate can possibly be considered paleo) or “raw” can be construed as a health claim, again it depends on wording. Consult a lawyer with experience in this area if you have any doubt.
What’s next?
Your company has fewer than 100 FTE employees and you are not making any nutrition, nutrient, of health claims on the label. There is just one more question to consider: what does the NLEA mean by “small quantities?”
The NLEA defines small quantities as “under 100,000 units of ‘the same product’ sold in the same twelve-month period.” If you mold “the same” chocolate into (for example) bars in 5gr, 50gr, and 100gr sizes, you add up the total of all the different sizes and if the number is less than 100,000 then that product meets the quantity requirements for a nutrition labeling exemption.
However, if the total is over 100,000 then each size of the product needs a nutrition facts panel — unless the total area is less than 12 sq in, in which case you need to indicate, on the label, a way for the customer to get the information should they so desire.
Assuming your company and product(s) meet all the above tests, notice must be filed annually with FDA to be in compliance with the NLEA. There is only one exception:
Firms with fewer than 10 employees with sales of less than 10,000 units/product do not have to apply to FDA for an exemption.
Counting to 100,000 — the fine print
The above points seem straightforward … but one offers some wiggle room. The 100,000-unit number for a product refers to [taken from the regulations]:
A product includes all package sizes that are manufactured by a single manufacturer or which bears the same brand name, which has the same statement of identity, and has a similar preparation method .
In considering whether products have similar preparation methods, consider all steps that go into the preparation of the products, from the initial formulation steps to any finishing steps; for example, products with different ingredients would be considered different food products and counted separately in determining the number of units.
But ... what do “different ingredients” and “similar preparation methods” (or, recipe ) mean? This is where interpretation comes into play.
- One way to interpret the guidelines would be to say that “all bars with 70% total cocoa content and with an ingredients list that consists of ‘cocoa beans, sugar’ and that are processed entirely in a melangeur” are the same product (or recipe; similar preparation methods and similar ingredient lists). This is probably how an inspector would view things.
- Another way to interpret the guidelines would be to say that “all bars with a 70% total cocoa content and with an ingredients list that consists of ‘cocoa beans, sugar’ and that are processed entirely in a melangeur” are not same recipe if the beans are from different origins . The question is, “Are cocoa beans from Nicaragua the same ingredient as cocoa beans from Colombia?” Probably. But maybe not .
It’s not all that hard to get to a count of 100,000 if your interpretation of “recipe” is broad – the approach suggested in 1) above. Assuming only 50gr bars are being molded, 100,000, 70% bars comes out to be less than 5MT of beans.
However, if you do have to put a nutrition facts panel on the label, with the broad interpretation in 1) you can use the same nutrition facts panel for every product that has a similar preparation method and the same ingredients. This reduces the cost of compliance significantly.
Because of the ambiguity of the regulations it is possible to argue that beans of different origins are different ingredients; they have different fat levels and macronutrient contents. (It might also be possible to claim that using a melangeur and using a ball mill and roll mill are different preparation methods within the meaning of the regulations.)
For every product with a different recipe – and this does mean inclusions or flavorings and could include equipment/method – a labeling exemption could be claimed. This is the narrow interpretation in 2) above, which could, theoretically, be used to keep product counts below 100,000.
The narrow interpretation in 2) has not been tested that I know of, and the distinction is likely never to be something that would be of interest to the FDA.
However, as was pointed out, it is likely that a regulator or inspector would consider any liquor to be the same ingredient as long as the macronutrient content was within allowable limits–tending toward the interpretation in 1). That said, with adequate record keeping in place to document segregation of ingredients and processes, it might be possible to successfully argue the case that liquors made with beans from different origins were different ingredients. Ask a lawyer before going down this path.
Top Line Summary and Conclusions
Again, I am not a lawyer so please do not rely on this interpretation should you be inspected. Consult a lawyer before you decide what, or what not, to do.
- If your company is eligible for the labeling exemption you must apply for it to be in compliance with the NLEA.
- Your company must file for an exemption for each year and for each product for which you want to claim the exemption, unless you have fewer than 10 FTE employees and sell fewer than 10,000 units of a product.
- If your company has more than 10 FTE employees, is making more than 10,000 and fewer than 100,000 units of any product in a twelve-month period, and has fewer than 100 FTE employees and is not making health or nutrition/nutrient claims on the label, the products that are manufactured in under 100,000 unit quantities are eligible for a labeling exemption.
- If your company has fewer than 100 FTE employees, you can have a mix of products that do and do not qualify for the exemption. However, your company must file for the labeling exemption each year and for each product that qualifies for the exemption .
Going back to the original question: assuming the Mast Bros have fewer than 100 FTE employees, it is possible for them to claim a small business labeling exemption for many, if not all, products they make. It all depends on how they count to 100,000.
That said, it is my sincere hope that every chocolate maker will see the wisdom in providing this information somewhere, if not on the label then on their web site, in the box when shipping direct, and to their retailers. I don’t know where the cut-off should be - $500k in annual sales? – but I’d like to see small makers adopt the business discipline and responsibility and put nutrition facts panels on their labels even if they are not required to by law.
Notes
On a related labeling point, if you are using cocoa beans with less than 50% fat you cannot legally call your product chocolate as the regulations for cocoa liquor require 50% minimum fat content. From my reading (again, IANAL), even if you added cocoa butter to get to the 50% minimum, your chocolate would still not legally qualify as chocolate because the definition applies to the liquor. This is not something a small maker is likely to ever get called on, it’s just something to be aware of. (CFR 21 Sub-part B §163.111, Chocolate liquor.)
In addition to the nutrition label, products may display certain nutrition information or health claims on packaging. Health claims are only allowed by the FDA for "eight diet and health relationships based on proven scientific evidence", including: calcium and osteoporosis, fiber-containing grain products, fruits and vegetables and cancer, fruits, vegetables, and grain products that contain fiber—particularly soluble fiber—and the risk of coronary heart disease, fat and cancer, saturated fat and cholesterol and coronary heart disease, sodium and hypertension, and folate and neural tube defects.
Paleo food labels and advertisements are no exception to these rules. Companies that advertise the health benefits of Paleo foods must ensure their claims are not misleading to consumers and any claims they make are backed by appropriate scientific support. At the same time, companies should beware of making negative claims about the potential “detriments” of non-Paleo foods (e.g., that dairy, soy or corn products are unhealthy), which could attract unwanted negative attention or legal action from those industries. [Note: By extension, claims made for raw would be subject to this logic.]
Sources
- http://www.fda.gov/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/LabelingNutrition/ucm053857.htm
- http://www.fda.gov/ICECI/Inspections/InspectionGuides/ucm074948.htm
- https://www.accessdata.fda.gov/scripts/nle/client/report/
- https://en.wikipedia.org/wiki/Nutrition_Labeling_and_Education_Act_of_1990
- https://en.wikipedia.org/wiki/Nutrition_facts_label
- http://www.foodsafetymagazine.com/enewsletter/labeling-of-health-and-nutrition-claims/
- https://www.law360.com/articles/639623/is-paleo-the-next-battleground-in-food-litigation
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clay - http://www.thechocolatelife.com/clay/
updated by @clay: 07/30/19 16:03:07
