[Federal Register Volume 88, Number 78 (Monday, April 24, 2023)]
[Notices]
[Pages 24808-24811]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-08543]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
[Docket No. FDA-2023-N-0624]
Food Labeling in Online Grocery Shopping; Request for Information
AGENCY: Food and Drug Administration, HHS.
ACTION: Notice; request for information.
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SUMMARY: The Food and Drug Administration (FDA or we) is requesting
information to help empower consumers with accurate, informative, and
accessible food labeling. The purpose of this request is to obtain
current information on the content, format, and accuracy of food label
information that is presented to consumers through online grocery
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shopping platforms. We intend to use the information submitted in
response to this notice to help improve consumer access to consistent
and accurate nutrition, ingredient, and allergen information for
packaged foods sold through e-commerce.
DATES: Either electronic or written comments on the notice must be
submitted by July 24, 2023.
ADDRESSES: You may submit comments and information as follows. Please
note that late, untimely filed comments will not be considered.
Electronic comments must be submitted on or before July 24, 2023. The
https://www.regulations.gov electronic filing system will accept
comments until 11:59 p.m. Eastern Time at the end of July 24, 2023.
Comments received by mail/hand delivery/courier (for written/paper
submissions) will be considered timely if they are postmarked or the
delivery service acceptance receipt is on or before that date.
Electronic Submissions
Submit electronic comments in the following way:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments. Comments submitted
electronically, including attachments, to https://www.regulations.gov
will be posted to the docket unchanged. Because your comment will be
made public, you are solely responsible for ensuring that your comment
does not include any confidential information that you or a third party
may not wish to be posted, such as medical information, your or anyone
else's Social Security number, or confidential business information,
such as a manufacturing process. Please note that if you include your
name, contact information, or other information that identifies you in
the body of your comments, that information will be posted on https://www.regulations.gov.
If you want to submit a comment with confidential
information that you do not wish to be made available to the public,
submit the comment as a written/paper submission and in the manner
detailed (see ``Written/Paper Submissions'' and ``Instructions'').
Written/Paper Submissions
Submit written/paper submissions as follows:
Mail/Hand Delivery/Courier (for written/paper
submissions): Dockets Management Staff (HFA-305), Food and Drug
Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
For written/paper comments submitted to the Dockets
Management Staff, FDA will post your comment, as well as any
attachments, except for information submitted, marked and identified,
as confidential, if submitted as detailed in ``Instructions.''
Instructions: All submissions received must include the Docket No.
FDA-2023-N-0624 for ``Food Labeling in Online Grocery Shopping; Request
for Information.'' Received comments will be placed in the docket and,
except for those submitted as ``Confidential Submissions,'' publicly
viewable at https://www.regulations.gov or at the Dockets Management
Staff between 9 a.m. and 4 p.m., Monday through Friday, 240-402-7500.
Confidential Submissions--To submit a comment with
confidential information that you do not wish to be made publicly
available, submit your comments only as a written/paper submission. You
should submit two copies total. One copy will include the information
you claim to be confidential with a heading or cover note that states
``THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.'' We will review
this copy, including the claimed confidential information, in our
consideration of comments. The second copy, which will have the claimed
confidential information redacted/blacked out, will be available for
public viewing and posted on https://www.regulations.gov. Submit both
copies to the Dockets Management Staff. If you do not wish your name
and contact information to be made publicly available, you can provide
this information on the cover sheet and not in the body of your
comments and you must identify this information as ``confidential.''
Any information marked as ``confidential'' will not be disclosed except
in accordance with 21 CFR 10.20 and other applicable disclosure law.
For more information about FDA's posting of comments to public dockets,
see 80 FR 56469, September 18, 2015, or access the information at:
https://www.govinfo.gov/content/pkg/FR-2015-09-18/pdf/2015-23389.pdf.
Docket: For access to the docket to read background documents or
the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in
the heading of this document, into the ``Search'' box and follow the
prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane,
Rm. 1061, Rockville, MD 20852, 240-402-7500.
FOR FURTHER INFORMATION CONTACT: Pedro A. Cruz, Center for Food Safety
and Applied Nutrition (HFS-820), Food and Drug Administration, 5001
Campus Dr., College Park, MD 20740, 240-402-2371 or Carrol Bascus,
Center for Food Safety and Applied Nutrition, Office of Regulations and
Policy (HFS-024), Food and Drug Administration, 5001 Campus Dr.,
College Park, MD 20740, 240-402-2378.
SUPPLEMENTARY INFORMATION:
I. Background
FDA seeks to improve dietary patterns in the United States to help
reduce the burden of diet-related chronic diseases and advance health
equity. We are committed to accomplishing this, in part, by empowering
consumers with accurate, informative, and accessible food labeling to
help them in choosing healthier diets.
For purposes of this document, ``e-commerce'' refers to commercial
transactions conducted on the internet. The Coronavirus Disease 2019
(COVID-19) pandemic greatly increased the use of e-commerce in the
United States, including online grocery food shopping, which is the
focus of this request for information (RFI). In 2019, consumers in the
United States spent $62.2 billion on online grocery sales (Ref. 1). In
2020, online grocery sales grew 54 percent, reaching $95.8 billion, and
accounted for 7.4 percent of all grocery sales (Ref. 1). Between 2019
and 2020, consumer use of online platforms to purchase at least some of
their groceries rose from 19 percent to 79 percent, and this number is
expected to grow (Ref. 3). Online grocery orders are expected to make
up 21.5 percent of all U.S. grocery sales in 2023 (Ref. 3).
Online grocery shopping could change consumer behavior for the
long-term, given the shift in how people are purchasing groceries. The
increase in online grocery shopping is an opportunity to ensure
consumers are able to find and view label information that will help
them make more informed and healthier food choices. In this document,
the term ``online grocery'' refers to foods ordered through grocery
retailer (e.g., supermarket) websites, directly from the manufacturer's
websites, and third-party online grocery providers (e.g., a grocery
fulfillment service that offers food products from various grocery
retailers). It does not include ready-to-eat meals (e.g., salad or hot
food bar) that are ordered online from grocery providers for pick-up or
delivery.
We are interested in the nutrition (e.g., Nutrition Facts label),
ingredient, and major food allergens label information that is
available to consumers through online grocery shopping platforms. We
are also seeking feedback about consumer experiences in
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viewing food labeling information when grocery shopping online. In
particular, we would like data on how consumers use food label
information and the extent to which different consumer groups (e.g.,
racial and ethnic minority groups, those living in rural communities,
those with lower socioeconomic status, and persons with disabilities)
access and use the information when shopping for groceries online.
II. Regulatory Framework for Food Labeling Requirements
FDA is responsible for assuring that foods sold in the United
States are safe, wholesome, and properly labeled. FDA is responsible
for implementing and enforcing the Federal Food, Drug, and Cosmetic Act
(FD&C Act) (21 U.S.C. 301 et seq.), the Fair Packaging and Labeling Act
(15 U.S.C. 1451 et seq.), and the Public Health Service Act (42 U.S.C.
201 et seq.). In carrying out our responsibilities under these laws, we
ensure that food is safe, not adulterated, and not misbranded.
The Nutrition Labeling and Education Act of 1990 (Pub. L. 101-535)
amended the FD&C Act to require most foods to bear nutrition labeling
and to require food labels that bear nutrient content claims and
certain health messages to comply with specific requirements (21 U.S.C.
343(q) and (r)). In addition, the 2016 Nutrition Facts Label final rule
(81 FR 33741, May 27, 2016) updated the nutrition labeling requirements
for packaged foods to reflect new scientific information and dietary
recommendations.
The Food Allergen Labeling and Consumer Protection Act of 2004
(Pub. L. 108-282) amended the FD&C Act to require that the label of a
food that contains an ingredient that is or contains protein from a
``major food allergen'' declare the presence of the allergen in a
manner described by the law (section 403(w) of the FD&C Act) 21 U.S.C.
343(w)). The Food Allergy Safety, Treatment, Education, and Research
Act of 2021 (Pub. L. 117-11) amended the food allergen labeling
requirements to add sesame to the definition of major food allergens.
FDA's food labeling regulations are found in Title 21 of the Code
of Federal Regulations, part 101 (21 CFR part 101) and include
requirements for nutrition information (Sec. 101.9), ingredient
information (Sec. 101.4), statement of identity (Sec. 101.3), net
quantity of contents (Sec. 101.7), and name and place of business
(Sec. 101.5). The major food allergen labeling requirements are in
section 403(w) of the FD&C Act.
III. Food Labeling and Online Grocery Shopping
FDA addressed the issue of online labeling of food products in a
2007 ``Dear Manufacturer'' letter. At that time, for consistency and to
avoid consumer confusion, FDA recommended that the nutrition
information presented online be similar to FDA's Nutrition Facts label
requirements under Sec. 101.9.\1\ FDA maintained that, in some
circumstances, information disseminated online by, or on behalf of, a
regulated company met the definition of labeling in section 201(m) of
the FD&C Act (21 U.S.C. 321(m)) and therefore is subject to the
requirements of the FD&C Act. We recommended that, if manufacturers and
distributors made claims or provided label information on their food
products online, they ensure that the claims and other information is
consistent with FDA's current laws and regulations (Ref. 2).
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\1\ We consistently maintain that online labeling cannot be used
in place of labeling that is required on the actual package. The
regulations require all food in packaged form to be fully labeled on
the package, regardless of how the product is sold (internet vs.
retail store).
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The primary purpose of food labeling is to provide consumers with
information to make informed decisions about the food they are
purchasing, to make safe choices, and to maintain healthy dietary
practices. For this to be possible, consumers need accurate,
informative, and accessible food labeling when shopping for groceries
online.
We are aware that many grocery retailers, manufacturers, and third-
party online grocery providers present some label information online,
such as nutrition and ingredient information. However, there may be
inconsistencies in how and where this information is being displayed
between the different types of online platforms (e.g., website, mobile
application, etc.) and online grocery businesses (Ref. 3). For example,
the Nutrition Facts label and ingredient information may not be
consistently available for the same food packaged and sold through the
different online grocery providers (Ref. 4). In some cases, there may
be differences between the label on the food package and the
information that is being made available online. This may include
inconsistent nutrient values and differences in the format of the
nutrition information presented online compared to the nutrition
information that is declared on the package label.
In October 2021, FDA hosted the ``New Era of Smarter Food Safety
Summit on E-Commerce: Ensuring the Safety of Foods Ordered Online and
Delivered Directly to Consumers'' (Summit). Part of the Summit was
designed to help us learn more about labeling of food products offered
for sale through e-commerce. One session focused on food labeling. The
session specifically addressed the nutrition, ingredient, and allergen
information that is displayed through online grocery shopping
platforms. We also established a public docket for the Summit and
received limited comments that discussed food labeling issues
associated with grocery foods sold through e-commerce. To ensure we
have current data and information to inform our work to empower
consumers with consistent and accurate nutrition, ingredient, and
allergen information when grocery shopping online, we are providing
additional opportunity for comment through this RFI. To inform next
steps, we will consider comments from the Summit as well as data and
information submitted in response to this RFI.
IV. Request for Information
We request information on whether and how online grocery retailers,
food manufacturers, and third-party online grocery providers are
displaying nutrition, ingredient, and allergen information through
online grocery shopping platforms. When responding, please identify the
question by its number (such as 1.1) so that we can associate your
response with a specific question. Specifically, we request data and
information regarding:
1. Food Labeling Information Provided Through Online Grocery Shopping
1.1 The mandatory label requirements on most packaged foods
include, in part, nutrition information (e.g., Nutrition Facts label),
ingredient information, and major food allergens information (when
applicable). What mandatory label information is currently available
through online grocery shopping platforms? How consistently is
mandatory label information presented across online grocery shopping
platforms? Please provide any data and evidence to support your
response.
1.2 How is nutrition, ingredient, and major food allergens
information presented through online grocery shopping platforms? For
example, where is the information available on the web page in relation
to the product? Please provide any data and evidence to support your
response.
1.3 When provided, is the nutrition, ingredient, and major food
allergens
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information in the same format as on the packaged product (e.g.,
Nutrition Facts label format)? If pictures of the product are used, how
does the manufacturer, retailer, or third-party online grocery provider
ensure the information in the picture is consistent with the package
label, readable, and accessible on all devices (e.g., laptops,
smartphones etc.)? Please provide any data and evidence to support your
response.
2. Industry Considerations and Logistics of Food Labeling in Online
Grocery Shopping
2.1 Grocery foods may be sold in various ways through e-commerce,
(e.g., directly from the manufacturer, a retailer, or through a third-
party online grocery provider). How do manufacturers, grocery
retailers, and third-party online grocery providers decide what label
information to display for grocery foods sold through online platforms
(websites, mobile applications, etc.)? Please provide any data and
evidence to support your response.
2.2 What challenges and limitations do online grocery retailers,
manufacturers and third-party online grocery providers encounter when
seeking to display food labeling information on their respective
platforms? Please provide any data and evidence to support your
response. Also, what, if any, are the labeling challenges for
international websites selling groceries online?
2.3 How do manufacturers, retailers, and third-party online grocery
providers ensure that information online is consistent with the actual
product package and that the information is accurate and up to date?
Please provide any data and evidence to support your response.
2.4 How do online retailers and third-party online grocery
providers address manufacturer reformulations that may alter a
product's nutrition, ingredient, or major food allergens information?
If there is a change or error detected, how do online grocery shopping
platforms collect the information and update the website (e.g., is
there a customer feedback loop or internal quality assurance process to
detect and correct online labeling errors)? Please provide any data and
evidence to support your response.
2.5 What measures are online grocery shopping platforms taking to
ensure that consumers can access accurate nutrition, ingredient, and
major food allergens information when purchasing groceries online? Have
online grocery shopping platforms identified or capitalized on
opportunities to leverage online platforms (e.g., interactive labeling)
to improve consumer engagement with and accessibility to food labeling
information? Please provide any data and evidence to support your
response.
2.6 How are online grocery shopping platforms seeking to ensure
online access to labeling information is equitable for consumers? Do
current online labeling presentations present barriers to accessing
labeling information for certain consumers? Please provide any data and
evidence to support your response.
3. Consumer Use of Food Label Information in Online Grocery Shopping
3.1 What food label information do consumers expect to see when
shopping for groceries online? For example, do consumers expect all the
information presented online to be the same as the retail food package
label? When there is a picture of a product label online, do consumers
expect the picture of the label to be the same as the label on the
retail food package? Please provide any data and evidence to support
your response.
3.2 To what extent, and how, do consumers use nutrition,
ingredient, and major food allergens information when grocery shopping
online? For example, what percentage of consumers use the label to get
information to support eating healthier? What percentage of consumers
use the label information because of specific dietary concerns? We
would be especially interested in demographic data on consumers who
view label information when grocery shopping online. Please provide any
data and evidence to support your response.
3.3 What do consumers find most challenging about navigating online
shopping platforms for specific label information needs? Please provide
any data and evidence to support your response.
3.4 What data are available on the most effective ways for
presenting nutrition, ingredient, and major food allergens information
specifically through online grocery shopping platforms (websites,
mobile applications, etc.), so that consumers can easily access the
information? For example, is there a specific format (e.g., Nutrition
Facts label format) that consumers find useful in an online grocery
shopping platform? What are effective means of displaying this
information on the platform (e.g., link to additional product
information, viewable on the top 50 percent of the web page) to ensure
consumers have ready access? Please provide any data and evidence to
support your response.
V. References
The following references are on display at the Dockets Management
Staff (see ADDRESSES) and are available for viewing by interested
persons between 9 a.m. and 4 p.m., Monday through Friday; they are also
available electronically at https://www.regulations.gov. FDA has
verified the website addresses, as of the date this document publishes
in the Federal Register, but websites are subject to change over time.
1. eMarketer Editors. ``In 2021, Online Grocery Sales Will Surpass
$100 Billion'' Insider Intelligence, February 24, 2021, available
at: https://www.emarketer.com/content/2021-online-grocery-sales-will-surpass-100-billion. Accessed on October 3, 2022.
2. FDA. ``Guidance for Industry and FDA: Dear Manufacturer Letter
Regarding Food Labeling.'' January 2007. Available at: https://www.fda.gov/regulatory-information/search-fda-guidance-documents/guidance-industry-and-fda-dear-manufacturer-letter-regarding-food-labeling. Accessed on October 3, 2022.
3. Pomeranz, Jennifer L., et al., ``Opportunities to Address the
Failure of Online Food Retailers to Ensure Access to Required Food
Labelling Information in the USA'', March 2022. Available at:
https://www.cambridge.org/core/journals/public-health-nutrition/article/opportunities-to-address-the-failure-of-online-food-retailers-to-ensure-access-to-required-food-labelling-information-in-the-usa/9520BF4CB0E2CDDF9760276729F0DBE2. Accessed on October 3,
2022.
4. Olzenak, Kelly, et al., ``How Online Grocery Stores Support
Consumer Nutrition Information Needs'', March 2022. Available at:
https://www.sciencedirect.com/science/article/pii/S1499404620305248.
Accessed on October 3, 2022.
Dated: April 18, 2023.
Lauren K. Roth,
Associate Commissioner for Policy.
[FR Doc. 2023-08543 Filed 4-21-23; 8:45 am]
BILLING CODE 4164-01-P