On April 10, 2025, the Food and Drug Administration (FDA) released a pre-recorded webinar outlining the updated "healthy" nutrient content claim rule. As we previously discussed, the rule will go into effect on April 28, 2025, and companies must comply by February 25, 2028. FDA's presentation included an overview of key provisions, such as the recordkeeping requirements, and the agency's desire to provide enhanced flexibility in the final rule in response to public comments. Notably, FDA confirmed that the updated requirements apply to dietary supplements, although few dietary supplements are expected to qualify under the new standards. FDA also emphasized that not all uses of the term "healthy" trigger the rule, and whether a product falls under the rule depends on how the term is used within the broader context of its label and labeling.
To help educate the public and industry, FDA shared the infographics and fact sheets it has created to inform the public about changes to the updated rule. Additionally, the agency discussed its work to create a "healthy" symbol, which companies can use to indicate that a particular food product meets its revised criteria. FDA stated that the symbol can help people who are unfamiliar with nutrition information or non-native English speakers. Moreover, FDA will be working with companies to support the rule's implementation. Last, the agency discussed its partnership, through the Department of Health and Human Services, with Instacart to develop a filter to locate "healthy" foods and a virtual storefront.
As a separate matter, we note that Texas Attorney General Ken Paxton recently announced an ongoing investigation into WK Kellogg Company (Kellogg's) for potentially violating Texas consumer protection laws in its use of the term "healthy." According to the press release, the company advertises its cereal products (Froot Loops, Apple Jacks, Frosted Flakes, and Rice Krispies) as healthy, even though they contain artificial food colorings that Kellogg's had previously announced would be removed. To date, however, Kellogg's apparently has not removed these artificial dyes in products sold in the United States—despite taking this step in Canada and Europe. While Venable is monitoring the Texas attorney general's investigation, we also note that Kellogg's may have to reconsider its position, in light of recent bans of synthetic colors in foods served at school in Arizona, California, Utah, Virginia, and West Virginia.
