November 3, 2013
Since 1995, the American Heart Association (AHA) has certified foods meeting specific nutritional requirements and allowed manufacturers and restaurants to advertise that certification by using a “Heart-Check mark” on product labels or restaurant menus for qualifying foods. As the AHA explains, “The Heart-Check mark makes it easy to spot heart-healthy foods in the grocery store or when dining out. Simply look for the name of the American Heart Association along with our familiar red heart with a white check mark on the package or menu.”
Generally speaking, for an FDA-regulated food to use the AHA Heart-Check mark, it must meet or exceed the following nutritional requirements per label serving:
Note, however, that certain specific food groups, including nuts, whole grains, meats and seafood, have separate or supplemental certification requirements. Other food products, such as dietary supplements, meal replacements, alcoholic beverages, candy and desserts, do not qualify for certification by AHA.
However, AHA certification requirements are changing on Jan. 1, 2014. The most notable change is a nearly universal reduction in the sodium content permitted for heart-healthy certification. For many products the permissible sodium content will be cut by 50 percent or more. Permissible sodium content will vary by food product, and a complete list of permissible sodium content — both under the current regulations and 2014 regulations — is available at the AHA website. Other, less expansive, changes are product specific. For example, “Heavy Syrup” will no longer be permitted in canned fruits, vegetables, or potatoes, and lowered sugar allowances affect milk, milk substitutes and yogurt products.
Additionally, there are currently several variations of the AHA Heart-Check mark. For example, there are currently separate marks denoting a product is “Low in Saturated Fat and Cholesterol,” “Extra Lean” or “Whole Grain.” However, on Jan. 1, 2014, those will all be reduced to one all-purpose mark that states that the product has been AHA “certified” and “meets criteria for a heart-healthy food.” So even if a product remains below the new, more demanding, nutritional thresholds and does not need to be recertified, the label will still change to include the new mark.
Helpfully, the AHA has built some grace periods into the new certification requirements. Specifically, the “promotional deadline” is 60 days from Jan. 1. The “packaging deadline” is 120 days from Jan. 1. Accordingly:
While the AHA certification guidelines do not have the weight of law, misuse of the AHA Heart-Check mark in food product labeling or advertising could nonetheless have significant legal consequences. For example, improper use of the mark could trigger potential liability under various tort or contract theories, including fraud, breach of warranty, false advertising or the Lanham Act.
Finally, it should be noted that use of the AHA Heart-Check mark on certain products is not without its detractors. AHA and Campbell’s Soup Company (Campbell) are currently defending two putative class actions in the U.S. District Court of New Jersey challenging the use of the Heart-Check mark. ( See Waldron v. Campbell Soup Co., 1:13-cv-05015 (N.J. Dist., Aug. 20, 2013); O’Shea v. Campbell Soup Co., 1:13-cv-04887 (N.J. Dist., Aug. 13, 2013).) Both complaints allege that Campbell marketed and sold soups bearing the Heart-Check mark that contained too much sodium to be considered “heart healthy” under FDA standards for “low sodium foods.” Accordingly, plaintiffs in those suits argue that the use of the Heart-Check mark misled consumers into believing the soups were “low sodium” when they were not. Although both of those lawsuits are in their infancy, the AHA’s more restrictive 2014 sodium limits should theoretically reduce the risk of similar suits against food and beverage companies using the mark.
Food and beverage producers using the Heart-Check mark must be proactive in ensuring their compliance with the new, more restrictive, AHA requirements — and deadlines for updating advertising and labeling are fast approaching. McGuireWoods’ food and beverage industry team has extensive experience counseling food and beverage clients in product labeling and advertising issues, including the use of the AHA Heart-Check mark. McGuireWoods also has extensive experience defending food and beverage clients in fraud, false advertising, Lanham Act and related litigation regarding food labeling and advertising issues.