FDA Issues Request for Information on Food Labeling in Online Grocery Shopping

On April 21, 2023, the Food and Drug Administration (FDA) issued a Request for Information, (RFI) to learn more about food labeling information provided on online grocery shopping platforms.  The agency’s stated goal is to obtain current information on the content, format, and accuracy of food label information presented on online grocery platforms in order to help improve customer access to consistent and accurate nutrition, ingredient, and allergen information for packaged foods sold through e-commerce.  “Online grocery” includes foods ordered through grocery retailer websites, directly from the manufacturer’s websites, and third-party online grocery providers offering products from a variety of grocery retailers.  The term does not include ready-to-eat meals ordered online from grocery providers, nor does it appear to include meal kits to cook at home.

In a corresponding Constituent Update, FDA notes that the RFI also is part of the Biden-Harris Administration’s National Strategy on Hunger, Nutrition, and Health, which seeks to provide a roadmap of actions the federal government is taking to end hunger and reduce diet-related diseases by 2030 while reducing disparities.  FDA explains that these goals can be accomplished, in part, by ensuring consumers are able to access food labeling information online, which can help them to make more informed and healthier food choices.

In 2007, FDA published a “Dear Manufacturer” letter maintaining that, in some circumstances, information posted online by or on behalf of a regulated entity meets the FDCA’s definition of “labeling” and therefore is subject to FDCA requirements.  FDA recommended that food manufacturers or distributors making claims or providing label information online should ensure that those claims and information are consistent with FDA requirements.  In the RFI, FDA states that many online grocery platforms present some label information online, but that there may be inconsistencies between different types of online platforms and different online grocery businesses in terms of how, where, and what information is displayed.  In addition, FDA notes that there may be inconsistencies between information presented on packaged food labels and that available online, including differences in nutrient values and formatting.

As part of FDA’s October 2021 New Era E-Commerce Summit, FDA established a public docket to receive comments on labeling of food products for sale through e-commerce.  The agency, however, received limited comments on such e-commerce issues.  As its explains in its RFI, FDA is soliciting additional feedback from stakeholders on these issues to ensure it has current data and information, and it intends to consider comments from the Summit as well as those in response to the RFI to inform next steps.     

Key Questions

The RFI seeks to engage stakeholders on three key topics for which the agency requests relevant data and information:

1. Food Labeling Information Provided Through Online Grocery Shopping
   • What mandatory label information (including nutrition information, ingredient information, and major food allergens information) is currently available through online grocery platforms?  How consistently is mandatory label information presented across online grocery platforms?
   • 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?
   • When provided, is the nutrition, ingredient, and major food allergens information in the same format as on the packaged product (e.g., in the 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.)?
2. Industry Considerations and Logistics of Food Labeling in Online Grocery Shopping
   • 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.)?
   • 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?  What, if any, are the labeling challenges for international websites selling groceries online?
   • 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 a change or error is 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)?
   • 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?
   • 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?
3. Consumer Use of Food Label Information in Online Grocery Shopping
   • 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?
   • 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?  The agency is interested in demographic data on consumers who view label information when grocery shopping online.
   • What do consumers find most challenging about navigating online shopping platforms for specific label information needs?
   • 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?

What Can You Do?

Stakeholders may submit comments on or before July 23, 2023.  Interested stakeholders should submit comments electronically through the Federal eRulemaking Portal by searching FDA-2023-N-0624.

If you have any questions concerning the material discussed in this client alert, please contact the members of our Food, Beverage, and Dietary Supplements practice.