Thursday, April 3, 2008

FALCPA and Gluten: How Labeling Laws Effect You

FALCPA, the Food Allergy Labeling Consumer Protection Act was passed in 2004 and went into effect on January 1, 2006. It requires that companies list any and all of the eight top food allergens present in each of its products in clear language in the ingredients section of the product’s label. The eight allergens are milk, eggs, fish, crustacean shellfish, peanuts, tree nuts, wheat and soy. Wheat makes up a large portion of the gluten in gluten-containing foods, but unfortunately, under FALCPA, rye and barley (and sometimes oats), which are the other gluten-containing grains, do not have to be disclosed. So, while FALCPA certainly helps those with Celiac disease and gluten allergies in determining which products to avoid based on the presence of wheat, there is still no such assistance for products that contain barley or rye or ingredients derived from these two grains.

In response to FALCPA, the FDA has been working on a definition of “gluten” and regulations that will dictate a company’s right to voluntarily label their products “gluten free.” A summary of the key points of the current proposal can be read here. The full proposal can be read here and a final ruling is required this coming August; so stay tuned. The ongoing discussion is very detailed and would be impossible to layout in a concise blog posting, so I just want to discuss a few concerns I have after reading through the very dense proposal.

First, according to the current proposal, the FDA is considering allowing companies to voluntarily label any product that contains fewer than 20 parts per million (ppm) of gluten “gluten free.” This will certainly help gluten intolerant shoppers in determining which products have little to no gluten, but what about those people who cannot tolerate even 19 ppm of gluten? Another concern is that someone consuming several products in the course of a day, week, or month containing fewer than 20 ppm of gluten could inadvertently accumulate a substantial (and harmful) amount of ingested gluten and therefore experience adverse effects. By the way, 20 ppm has been chosen because that is the minimum level at which the FDA believes gluten can be consistently and accurately detected by current analytic processes.

Second, the FDA is debating whether or not to allow companies to label naturally gluten free foods such as rice “gluten free” by including a label that says “All rice is gluten free” (so as not to mislead consumers to believe that rice Brand X is gluten free while rice Brand Y is not, simply because Brand X chose to include the “gluten free” labeling, while Brand Y did not). But, with this labeling, what if rice Brand Z’s processing plant is a not a gluten free dedicated facility? This labeling seems dangerous because a consumer may now incorrectly assume, based on the FDA’s labeling laws, that all rice is gluten free, while in reality the production process of each brand may not uphold the gluten free integrity of the product.

For a continuing discussion on gluten labeling laws, check frequently. We will update you with any new regulations as they are enacted.