Sugar and Salt: Popular Ingredients with Possible Lawsuits

Few ingredients are more common in American food products, or more popular with American consumers, than sugar and salt. Indeed, the average American consumes 3,400 milligrams of salt and 110 grams of sugar every day, amounts well in excess of those recommended in the Dietary Guidelines for Americans issued by the U.S .Department of Health and Human Services in conjunction with USDA. More than just popular, both ingredients are extremely useful to food manufacturers. Sugar, for example, allows for longer shelf-life while adding bulk and color to processed foods. The preservative effect of salt has been known for thousands of years, but salt also serves to reduce cost in comparison to other flavoring agents while masking unpalatable flavors associated with processing. Given this combination of utility for industry and popularity with consumers, there should be little surprise that both sugar and salt maintain a constant presence in the American diet.

For food manufacturers, though, the near future may hold a number of challenges where sugar and salt are concerned. In particular, recent U.S. FDA action implicating sugar and salt, combined with increased willingness on the part of plaintiff lawyers to pursue labeling and ingredient claims against food manufacturers, could lead to an environment of increased cost and litigation across the industry.

Will Sugars Lead to Litigation?

Following the passage of the Food Safety Modernization Act, or FSMA, in March 2014 the FDA proposed a number of changes to the Nutrition Facts Panel on packaged food, including the partition of information on sugar into total “Sugars” with a separate category termed “Added Sugars.” In proposing this change, FDA relied on authority provided in the Food Drug and Cosmetic Act that allows changes to the Nutrition Facts Panel to help consumers “maintain healthy dietary practices.” According to FDA, including Added Sugars will “help consumers understand how much sugar is naturally occurring and how much has been added to the product” with the premise that added sugars “provide no additional nutrient value…”

The Added Sugars proposal raises a number of questions and concerns. For one, as proposed, the category of Added Sugars includes any type or amount of sugar added to foods during processing or preparation, failing to distinguish between the addition of raw untreated sugar products, common refined sugar, naturally-occurring sugars from whole food sources such as fruit juice, and modern, highly synthesized ingredients such as high fructose corn syrup. To the FDA, the fact that sugar is added appears more important than what is actually being added. Indeed, the FDA acknowledges its rationale for making added sugars a mandatory declaration “is different from our rationale to support other mandatory nutrients to date,” and that inadequate evidence exists to support the direct contribution of added sugars to obesity or heart disease.

It is also not clear whether information on Added Sugars is truly helpful to consumers, or just likely to cause confusion. One study, published in August 2014, tested consumer perceptions of the relationship between total carbohydrates, sugars, and added sugars, and investigated how consumers use the Nutrition Facts panel to make purchasing decisions. Shown different versions of the Nutrition Facts panel, 92 percent of consumers were able to correctly determine how much sugar was contained in the product when using the current Nutrition Facts panel, while only 55 percent and 66 percent of consumers were respectively able to determine total sugar content when shown a panel with Added Sugars information. According to researchers: “34 percent believe [Added Sugars] simply means more sugar has been added to the products, 28 percent think the line distinguishes between added sugars and sugars that are naturally occurring in the other product ingredients, [and] about one in five (19 percent) just don’t know what it means.”