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Martin Hahn and Meg McKnight specialize in food law at the law firm of Hogan & Hartson, L.L.P, in Washington, DC. The Food Allergen Labeling and Consumer Protection Act (FALCPA) of 2004 was passed to ensure that individuals, particularly parents of children with food allergies and others providing food to those children, could easily and accurately identify food ingredients that may cause allergic reactions. Under FALCPA, allergen declarations must be written in plain English. The answers to frequently asked questions about FALCPA appear below. 1. What labeling changes are going to result from the new law? FALCPA requires that allergens contained in food products be declared in plain English in one of two ways: (1) By placing the word “Contains” followed by the name of the food source from which the major food allergen is derived immediately after or adjacent to the list of ingredients, in a type size no smaller than that used for the list of ingredients (e.g., “Contains milk and wheat”); or (2) By placing the common or usual name of the allergen in the list of ingredients followed in parentheses by the name of the food source from which the allergen is derived (e.g., “natural flavoring [eggs, soy]”). The name of the allergen needs to appear only once in the ingredient statement. For example, a product that contains both milk and a milk-derived ingredient, such as whey, would be labeled as follows: “milk, sodium caseinate, whey” or “natural flavor (milk), sodium caseinate, whey.” In the case of nuts and seafood, the law requires that the specific type of nut (e.g., walnut, almond, cashew) or species of fish (e.g., cod, tuna) or shellfish (shrimp, lobster) be specified. 2. When does FALCPA go into effect? The law applies to food products that are labeled on or after January 1, 2006 . Food products manufactured and labeled prior to this time can continue to be shipped by food companies and some will be found on retail shelves after January 1, 2006 . Food products that are labeled prior to January 1, 2006 , may be found in stores for months and possibly a year or longer, depending on the product’s expiration date. 3. Is there a penalty for noncompliance? Yes. A company will be subject to the civil and criminal penalty provisions of the Federal Food, Drug, and Cosmetic Act if one of the company’s packaged food products does not comply with the FALCPA labeling requirements. In addition, food products containing undeclared allergens will likely be subject to recall. 4. Why does this act affect only certain allergens? More than 160 foods have been identified in the scientific literature as triggering food allergies. When drafting the language of FALCPA, Congress limited the labeling requirements to the eight “major food allergens,” which account for 90% of all food allergies in the United States . These eight foods or food groups are milk, egg, fish (e.g., bass, flounder, cod), crustacean shellfish (e.g., crab, lobster, shrimp), tree nuts (e.g., almonds, pecans, walnuts), wheat, peanuts, and soybeans or an ingredient that contains a protein derived from one of these foods. While other allergens are not subject to FALCPA’s labeling requirements, the eight major allergens and ingredients derived from the eight major allergens must be declared in ingredient statements. Importantly, if you are allergic to an allergen other than one of the major allergens (such as sesame seeds or poppy seeds), your allergen is not required to be identified in the “Contains ” statement that will appear on some packages — you must read the full ingredient statement. Next >
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