WASHINGTON — The Food and Drug Administration’s proposed mandatory declaration of “added sugars” and their per cent Daily Value on the Nutrition Facts Panel suffer from serious, if not fatal, procedural defects, according to comments submitted to the F.D.A. by the American Bakers Association and the Retail Bakers of America.
The F.D.A. proposed listing “added sugars” in a proposed rule designed to update the Nutrition Facts Panel and found in the March 3, 2014, issue of the Federal Register. The F.D.A. in the July 27, 2015, issue of the Federal Register then proposed listing the per cent Daily Value of added sugars on the Nutrition Facts Panel. The F.D.A. accepted comments until Oct. 13.
The F.D.A.’s actions are not evidence-based and impinge on First Amendment protected speech, and the F.D.A. lacks statutory authority to require certain information, according to comments dated Oct. 9 and signed by Lee Sanders, senior vice-president, government relations and public affairs for the A.B.A., and Dennis J. Stanton, director, chairman governance taskforce for the R.B.A.
The F.D.A. lacks the statutory authority to compel a mandatory added sugars declaration, according to the A.B.A. and the R.B.A. Congress in the Food, Drug, and Cosmetic Act granted the F.D.A. authority to expand the list of nutrients required for labeling only for “additional nutrients.” Added sugar does not qualify as an “additional nutrient” because it is not chemically distinct from naturally occurring sugar, according to the baking groups.
The comments also referenced data from a consumer survey showing the “added sugars” declaration may confuse a majority of consumers and lead them to choose less healthful foods. The A.B.A., the Corn Refiners Association, the International Dairy Foods Association, the National Confectioners Association and the Sugar Association, Inc. designed, analyzed and funded the study, which featured responses from 2,014 people. Toluna, a digital market research and technology company, conducted the research this month.
A majority of respondents incorrectly perceived “added sugars” as unsafe when consuming more than 100% of the Daily Value, and a majority also incorrectly perceived “added sugars” as more important to limit than other types of sugar. About half of the respondents said they believed added sugars had more calories than other types of sugars. The F.D.A., however, has said added sugars are not chemically distinct from naturally occurring sugars.
The consumer study also found the “added sugar” and per cent Daily Value listing may lead consumers to characterize a product with less fiber and more total sugars, but no added sugars, as more healthful than a food with lower total sugars, but with added sugars, and higher fiber content.
“In the baking industry, strawberries contain more intrinsic naturally occurring sugar than rhubarb,” the A.B.A. and the R.B.A. said in their comments. “When making pie, therefore, more sugar would be added to the rhubarb than to the strawberry for palatability purposes. Thus, although the overall nutritional profile of the rhubarb pie is better than the strawberry pie and would contain lower total sugars, the rhubarb pie would declare significantly more added sugars.”
The A.B.A. and the R.B.A. also said the F.D.A. has an overly broad, non-scientific definition of “added sugars.” The F.D.A. has proposed to define added sugars as “sugars that are either added during the processing of foods, or are packaged as such, and include sugars (free, mono- and disaccharides), syrups, naturally occurring sugars that are isolated from a whole food and concentrated so that sugar is the primary component (e.g., fruit juice sweeteners), and other caloric sweeteners.”
Debating daily value
The F.D.A. originally did not propose to have a per cent Daily Value for added sugars on the Nutrition Facts Panel. Then a Dietary Guidelines Advisory Committee report issued earlier this year presented evidence showing an association between reduced intake of added sugars and a reduced risk of chronic disease, specifically cardiovascular disease. The new findings led the F.D.A., in the July 27 issue of the Federal Register, to propose a per cent Daily Value for added sugars. The A.B.A. and the R.B.A. said the evidence presented in the Dietary Guidelines Advisory Committee report does not establish a direct link between added sugar intake and an increase in cardiovascular disease risk.
The A.B.A. and the R.B.A. also took issue with the F.D.A. proposing to establish a Daily Reference Value (D.R.V.) for added sugars of 50 grams for people age 4 and older and 25 grams for children age 1-3. The F.D.A. proposed people keep added sugar intake below 10% of daily energy/calorie intake, which is the same recommendation in the Dietary Guidelines Advisory Committee report.
“The F.D.A. has a responsibility to give consumers the information they need to make informed dietary decisions for themselves and their families,” said Susan Mayne, Ph.D., director of the F.D.A.’s Center for Food Safety and Applied Nutrition. “For the past decade, consumers have been advised to reduce their intake of added sugars, and the proposed per cent Daily Value for added sugars on the Nutrition Facts label is intended to help consumers follow that advice.”
The F.D.A. relied on menu modeling provided in an advisory report, which is not enough scientific evidence to establish a D.R.V., according to the A.B.A. and the R.B.A.
An issue with fermentation
Listing the correct amount of added sugars in yeast-leavened products will be problematic and could conflict with the First Amendment, the baking groups added. Sugar reduction due to fermentation in yeast-leavened products is variable depending on the dough and manufacturing conditions. If the F.D.A. requires food companies to declare all added sugars originally in yeast-leavened products, without accounting for the reduction due to fermentation, companies would be forced to intentionally overstate the actual amount and per cent Daily Value of added sugars on the label of the products, which would be in violation of the First Amendment.
The F.D.A. has proposed to gain access to companies’ records to determine if they are complying with the proposed mandatory added sugar declaration. This list might include proprietary formulas and proprietary supplier/ingredient information, according to the baking groups.
The A.B.A. and the R.B.A. said listing added sugars on the Nutrition Facts Panel should be voluntary and not mandatory, which would be consistent with the requirements of the United Kingdom, Canada, Australia and New Zealand.
“As provided herein, F.D.A.’s mandatory ‘added sugars’ and % D.V. are not supported by robust scientific evidence or consumer research, do not promote predictability, potentially increase uncertainty, are not the least burdensome, do not maximize benefits, and the costs to bakers far outweigh any perceived benefits,” the baking groups said.
Changing to total sugars
If the F.D.A. in its final ruling mandates “added sugar” be listed on the Nutrition Facts Panel, the baking groups said the baking industry would need a five-year time frame to implement the proposed changes.
If the F.D.A. mandates “added sugar” be listed on the Nutrition Facts Panel, the baking groups said they would support changing “sugars” to “total sugars” on the panel.
The F.D.A. in 2014 conducted an experiment involving three label formats: one with “added sugars” indented below “sugars,” one with “added sugars” indented below “total sugars” and one with the current Nutrition Facts Panel. The format with “added sugars” indented below “total sugars” appeared to help people comprehend the total amount of sugars in a food more than the format with “added sugars” indented below “sugars” did.“While it is unclear whether F.D.A.’s consumer research sufficiently demonstrates it, A.B.A. agrees that a ‘total sugars’ declaration should assist consumers in understanding that ‘added sugars’ and intrinsic sugars are a sub-components of ‘total sugars,’ and to reduce the risk that consumers will add ‘added sugars’ to ‘total sugars,’ “ the baking groups commented.