FDA AND FOOD LABELING FOR AIRLINES
June 16, 2014
We have learned that the Food and Drug Administration (FDA) is considering a new policy on how food must be labeled on commercial airlines, which represents a change in the way the agency has historically interpreted the 2004 Food Allergen Labeling and Consumer Protection Act (the Act). Currently, complimentary food served on airlines is treated the same as food served in restaurants, which is exempt from labeling requirements. The FDA’s change in position appears to be based, at least in part, on a concern that passengers with severe allergies may inadvertently ingest food on an aircraft that was not labeled under the agency’s current interpretation of the Act.
As recently as 2008 the FDA continued to view food service on airlines as akin to restaurant food. Carriers and members of the in-flight catering community point to numerous ways in which in-flight food options are analogous to choices at a restaurant, as opposed to foods served in a grocery store (which must be labeled). For instance, passengers review airline “menus” when making food choices, obtain food via live service like in a restaurant, and interact with flight attendants in the same manner as a waiter or waitress. Given the above, and because food is served on commercial airlines in a variety of ways depending on flight time, origin, destination and cabin class, industry interests argue that a strict rule on labeling without any flexibility would be problematic.
While members of the industry are aware that some passengers have serious allergen concerns, it is impossible for carriers to create a 100% allergen-free environment due to passengers bringing their own food onto aircraft. Regardless of this difficulty, carriers strive to make allergen information available through labeling. In fact, many carriers already make allergen-related information available through the use of menu cards, inflight magazines or table tray liners, which allows passengers to make informed choices before they make food selections. Airlines believe that flexible means of distributing allergen information is the best course and has been proven by the lack of incidents inflight. The industry also believes that package labeling would be too limiting and the FDA should continue to classify airlines like restaurants which are not required to have on-package labeling, and will continue to work with FDA on any changes to the agency’s policy in this regard.
This Eckert Seamans Aviation Blog post is intended to keep readers current on matters affecting businesses and is not intended to be legal advice. If you have any questions, please contact Evelyn Sahr ( esahr@eckertseamans.com 202-659-6622) or Drew Derco ( dderco@eckertseamans.com 202-659-6665).