What Constitutes ‘Healthy’ Claims for Foods?

Ultimately, the task faced by FDA in resolving the issues with “healthy” claims is formidable. Perhaps the ultimate source of the problem is that “healthy” is a descriptor best applied to an entire diet, not to an individual nutrient or even really to an individual food. No one food provides complete, balanced nutrition. Almost any food, other than the most nutritionally horrendous, can find a place somewhere in a healthy dietary plan, if only as an indulgence.

And yet, a sentence like, “If you are considering a snack, an apple is healthier than a candy bar,” is not absurd or meaningless. To the extent “healthier” means anything in that sentence, it ultimately must reduce to what nutrients (albeit in a broader sense than FDA’s limited list) are present, and in what quantities, in the foods. But it reduces to all the nutrients in the foods, in the context of everything else their consumers eat. Reduce it any further and, while the healthiness decision between an apple and a candy bar may still be fairly easy, the choice between an apple and a protein bar—let alone between two different protein bars—can’t be predetermined. There may even be no general solution to the equation; too many of the variables are specific to the consumer.

The one thing that can be asserted confidently about nutrient content claims, and especially express or implied “healthy” messaging, is that we have not seen the end of either regulatory evolution or legal activity around them.

Horvath is a partner at Foley Hoag’s Advertising & Marketing practice. Reach him at [email protected].