• by Steve Ellwanger , March 7, 2023

Major CPG marketers say that if the U.S. Food and Drug Administration adopts its proposed updates to the use of the term “healthy” on ready-to-eat cereal, those updates would be “open to legal challenge” for violating free-speech rights.

Last September, the FDA said  updates would include the requirement that cereal labeled “healthy” must contain three quarters of an ounce of whole grains and no more than one gram of saturated fat, 230 milligrams of sodium and 2.5 grams of added sugars.

In February, General Mills, Kellogg Company and Post Consumer Brands filed a joint 12-page response to the FDA in which they agreed with the Consumer Brands Association that the updates would violate the First Amendment “by prohibiting truthful, non-misleading labeling claims in an unjustified manner."

The companies also claimed the updates would exceed the FDA’s statutory authority.

The FDA’s proposed criteria would disqualify the “overwhelming majority of the ready-to-eat cereals on the market from using the term ‘healthy,’” the companies stated—taking particular aim at sugar and sodium levels.

Included in that majority are cereals currently eligible for the United States Department of Agriculture’s Special Supplemental Nutrition Program for Women, Infants and Children.

General Mills, Kellogg and Post contend that “there is more room within a healthy dietary pattern to accommodate additional amounts specifically of added sugars and sodium.”

They suggest that the FDA “encourage” such nutrients as dietary fiber, protein, vitamin D, calcium, potassium or iron “as a basis for a food to qualify as healthy.”

As previously reported, the FDA first defined the nutrient-content claim of “healthy” in 1994, and its guidelines have shifted over the last two decades.