Will Increasing Beverage Serving Sizes Send the Wrong Message to Consumers?

January 3, 2011

By Cassandra A. Soltis

The Food and Drug Administration (“FDA”) posed that question in 2005, when it issued an advance notice of proposed rulemaking concerning the serving sizes of products that could reasonably be consumed at one eating occasion.  70 Fed. Reg. 17010 (Apr. 4, 2005).  The notice stemmed from recommendations made by FDA’s Obesity Working Group, which called for public comments on how to make calorie information more prominent on food labels.  In the notice, FDA explained that if data show that consumers are drinking larger amounts of beverages, and FDA increases the reference amount customarily consumed (“RACC”) for beverages accordingly, the serving sizes for beverages would likely increase, which might imply to consumers that larger serving sizes are being recommended.  70 Fed. Reg. at 17012. 

Although there has been no further action on this advance notice, FDA recently released a draft compliance policy guide (“CPG”) on serving size labeling for certain beverages.  Notice, Draft Compliance Policy Guide Sec. 510.800 Beverages – Serving Size Labeling; Availability, 75 Fed. Reg. 80828 (Dec. 23, 2010).  Through this draft CPG, FDA permits certain beverages to declare a larger serving size in labeling.  However, FDA sidesteps the question of whether larger serving sizes will be viewed as being recommended.       

The draft CPG, which is intended to provide guidance to FDA staff, provides that “FDA will typically consider not taking an enforcement action when a beverage container larger than 20 fluid ounces states the calories for 12 fluid ounces on the [front panel] and correspondingly provides the number of 12 fluid ounce servings in the container and the nutrition information is based on a 12 fluid ounce serving in the Nutrition Facts panel.”  Ordinarily, the labels of beverages must declare the number of servings in a product using 8 fluid ounces, which is the current RACC for beverages, and the nutrition information must also be based on that amount.  21 C.F.R. §§ 101.12, Table 2, 101.9(b). 

The policy described in the CPG is limited “to the following beverages in containers larger than 20 fluid ounces that display calorie information per 12 fluid ounce serving on the” front panel:  sports and energy drinks (neither of which are FDA-defined food categories); bottled water and water beverages; soft drinks and diet soft drinks; and ready-to-drink teas.  FDA does not intend the policy to apply to other beverages, “including 100% juices, diluted juice beverages, alcoholic beverages, or 100% milks.” 

A May 27, 2010, letter from the American Beverage Association ("ABA") to FDA requested the changes outlined in the draft CPG.  The ABA’s letter followed the beverage industry’s announcement of its “Clear on Calories” initiative, which is intended to make calorie information clear and consumer friendly. 
Comments on the draft CPG can be submitted to the Agency at any time, but FDA encourages comments to be submitted by February 22, 2011.  75 Fed. Reg. 80828.