Due to the COVID-19 pandemic, the use of online food shopping has outpaced regulatory attention to the provision of required food labeling information. While food packaging is required to have an information panel that discloses an ingredient list, nutrition facts label, common food allergens, and the amount of juice in fruit drinks, no regulation explicitly requires the same when products are sold online. Thus, when shopping for food, consumers are often faced with inconsistent and illegible information about the products available for sale in the online marketplace.
We are two years into the pandemic and online food retailers have not engaged in self-regulation to provide required information to consumers, nor has the government addressed online retailers’ lack of transparency regarding the same. In a study my colleagues and I performed a scan of ten food products across nine national online retailers (including the eight retailers involved in the initial launch of the Supplemental Nutrition Assistance Program (SNAP) Online Purchasing Pilot). We also conducted a legal analysis of federal regulatory agencies’ existing authorities to require online retailers to disclose the information panel for food.
We found that required information was present, conspicuous and legible only about 36 percent of the time across the four mandatory information categories for all products surveyed. Interestingly, we found differences across similar products from the same manufacturer, e.g., Honey Nut Cheerios vs. regular Cheerios, and among various Capri Sun drinks. We were surprised to find that the least consistently disclosed required information was common food allergens, which was not present for 63.5 percent of products that contain common allergens.
In contrast, voluntary health and nutrition-related claims on the product package image were present, conspicuous and legible across 63.5 percent of retailers and products. Online retailers even used their own platforms to display additional claims -- such as a “low sodium” claim for Coca-Cola -- which is not present on Coca-Cola’s packaging.
What can be done? Congress can enact a law requiring online food retailers to display the full information panel for food products sold online. Several U.S. Senators and Representatives did propose a bill in August 2021 that would have addressed this, but unfortunately it did not move forward in the legislature.
My legal analysis led me to conclude that the FDA, FTC and USDA already have existing authorities to address the lack of consistent disclosure of required information for food sold through online retailers. The FDA’s definition of “labeling” arguably includes the display of products on online retailer websites, since it performs the same function as labeling. Thus, the retailers should already be disclosing information required on the information panel, and the FDA could issue a guidance document or warning letters on this point. The FTC has the authority to address unfair and deceptive acts and practices by bringing cases enforcing the same; the lack of disclosure may qualify as both. The FDA and FTC can also work together to provide guidance to online retailers.
The USDA has the authority to prescribe rules for retailers to accept and redeem SNAP benefits, and as such it should be able to require online retailers to display the full information panel as a prerequisite to qualifying as a SNAP retailer. If the USDA acted, retailers would likely quickly abide by the requirements as the fear of losing the ability to accept and redeem SNAP benefits would likely outweigh concerns over violating FDA labeling regulations.
Consumers should be aware that they are not shopping on a blank slate; online platforms already decide which products you will see, in what order, and with what accompanying marketing. Thus, consumers might elevate transparency in their shopping decisions. Lack of transparency hurts all consumers. However, for SNAP participants the lack of transparency is especially concerning because in many locations, SNAP participants do not have a choice among online retailers who accept SNAP benefits. Other consumers can choose which online retailer to use – and can make that choice based on transparent sales and marketing practices. This inequitable access to required information is a compelling reason the USDA should require SNAP retailers to disclose the full information panel as a prerequisite to qualifying as a SNAP retailer.
Jennifer Pomeranz, JD, MPH
Assistant Professor of Public Health Policy and Management