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The Government’s Fraught, Overdue Effort to Redefine “Healthy” Food

The food industry and nutritionists are clashing over the FDA's plans to update rules for product labels. Will anyone be satisfied with the result?

Mike Mozart/Flickr

Last week, at a Hilton hotel in a Maryland suburb near Washington, D.C., the Food and Drug Administration held a little-noticed public meeting with big implications for anyone who goes grocery shopping in America. Food industry representatives, consumer advocates, and nutrition experts spent the day trying to influence the government as it looks to redefine which foods are allowed to be labeled as “healthy.”

This isn’t some strange new scheme from fast-food-loving President Donald Trump. The process began last year under the Obama administration, and it’s the first time this particular regulation is being updated since it was created more than two decades ago. Done right, it has the potential to bring outdated government rules into alignment with the latest research on nutrition. But some advocates worry industry could use this process to weaken nutrition standards, and others think the difficulty of deciding which foods deserve the “healthy” label might be a fools errand to begin with.

The FDA first regulated “healthy” labels in 1994, when health professionals were focused on reducing fat in the American diet. Describing the agency’s new rules that year, The New York Times reported that “healthy” food “must be low in fat and saturated fat and have limited amounts of sodium and cholesterol. The food must also contain at least 10 percent of the recommended daily value of one of the following: vitamin A, vitamin C, iron, calcium, protein or fiber.” (The nutrient requirement was known colloquially as the “jelly bean rule,” foreclosing “the possibility that jelly beans, which contain no fat or sodium, could be labeled as healthy,” the Times noted.)

FDA regulations set specific criteria for various types of “healthy” food, from “raw fruit or vegetable” to “enriched cereal-grain product,” to “raw, single-ingredient seafood or game meat.” But nutrition research has evolved significantly since the 1990s. “For instance, the most recent public health recommendations now focus on type of fat, rather than amount of fat,” Douglas Balentine, director of the FDA’s Office of Nutrition and Food Labeling’s Center for Food Safety and Applied Nutrition, wrote in a September blog post. Balentine referenced “nutrients that consumers aren’t getting enough of, like vitamin D and potassium,” and cited sugar as a growing concern, especially in processed foods.

The impetus for rewriting the “healthy” rules, though, was nuts. In March of 2015, the makers of Kind bars received a warning letter from the FDA telling them to remove “healthy” from four of their products. It brought bad press for the fruit-and-nut bars, which rose to prominence as filling, healthy alternatives to mainstream snack food. “Snackers looking for a healthy bite on the go may need to read Kind snack bars’ nutrition information a little more closely,” Bloomberg reported. Mother Jones wrote that Kind bars are “actually kind of not healthy at all.”

Kind ran afoul of the FDA because its nutty bars exceeded the maximum amount of saturated fat allowed for a “healthy” label. Yet as the company pointed out in a citizen petition asking the FDA to change its regulations, the federal government’s own 2015-2020 Dietary Guidelines for Americans single out nuts as part of a “healthy eating pattern.” Kind ultimately worked out a semantic fix with the FDA that allows the company to use “healthy” as a statement of its corporate philosophy but not a nutritional claim.

Nuts aren’t the only ingredient where the FDA’s current regulations are outdated. “Kellogg Co. doesn’t generally market its Frosted Flakes or low-fat Pop-Tarts as ‘healthy,’ but under the current guidelines, it could,” The Wall Street Journal reported. “While the foods are high in sugar, they meet all the criteria, from low fat to fortified with vitamins. And fat-free pudding cups can be marketed as healthy, but avocados couldn’t because they have too much fat, according to today’s rules.”

No one at Thursday’s meeting argued that the regulations should remain in their current form. There was a consensus that “healthy” should take into account various qualities of foods, not just their nutrients. But differences emerged over how to change the rules.

Kristin Reimers, nutrition director for the packaged food company Conagra Brands, told the crowd she’s all for encouraging healthier foods, but added, “It’s important to keep in mind that taste is the primary factor that drives consumers to the foods they buy.” In an interview, she clarified that she thinks there should be a bit more sodium, saturated fat, and sugar permitted in “healthy” foods than the FDA currently allows. “If we don’t have slightly higher amounts of those nutrients that carry the flavor,” she said, “then the foods won’t be accepted by the consumer and they’ll fail.”

But Lindsay Moyer, senior nutritionist at the Center for Science in the Public Interest, isn’t buying it. She told the crowd that the “healthy” label should be permitted very sparingly. “A ‘healthy’ label should not be a marketing tool that helps marginally better processed foods compete with fruits, vegetables, and other truly healthy foods,” she said. “Consumers should be able to trust the label to identify the most nutrient-dense foods that fit in a healthy diet.”

For example, Moyer said, “healthy” whole grain should be 100 percent whole grain. She allowed that lean poultry and frozen green beans could qualify for the label, but said, “Making a chip or a french fry or a cookie that could conform to some set of standards and be called ‘healthy’ is not what Americans need. What they need is to see foods that address the fact that nine out of ten Americans aren’t eating enough vegetables.”

Justin Mervis, Kind’s senior vice president and general counsel, said he agreed with Moyer on many points, but that the “healthy” definition doesn’t need thresholds for good nutrients. “Under the current regulatory scheme, in order to be labeled with ‘healthy’ as a nutrient content claim, a food needs to have 10 percent more daily value of things like protein or vitamins,” he noted. Mervis does think there should be restrictions on added sugar, sodium, and added fats.

Laurie Tansman, a nutritionist from New York who attended the FDA meeting, argued during a public comment period that redefining the “healthy” label doesn’t matter much in a world where food companies can use claims like “gluten-free,” which connote healthiness but don’t have the same restrictions.

“Regardless of how you define the term ‘healthy,’ I don’t think it’s going to make a big difference in whether a consumer chooses a particular product or not,” she said. “Food companies have gotten out of control when it comes to what they put on food labels to ensure their product is purchased. If the term ‘healthy’ is going to stand out and have value, than you need to clean up what is currently permitted on food labels.”

Some stakeholders, though, believe any attempt to define “healthy” would be in vain. Pepin Tuma, senior director of government and regulatory affairs for the Academy of Nutrition and Dietetics, said there’s “massive consumer confusion about what it means.” That’s partly why his group has “the tentative position that there is not a definition for ‘healthy’ that the FDA should adopt.” Tuma even said he thinks the government should consider banning food companies’ use of the term, though this would necessarily raise First Amendment questions.

“If we can’t come to some agreement,” he told me, “then maybe it’s a term that should be put on pause.”