Is the FDA enforcing the gluten-free labeling rule?
Question: How many FDA food recalls have there been since January 1, 2016 and the reason/problem cited by the FDA is gluten?
Answer: Two
A search under “gluten” on FDA’s “Recalls, Market Withdrawals, & Safety Alerts” page resulted in the following:
- May 3, 2018: Van’s Waffles: Product may contain gluten and undeclared milk https://www.fda.gov/Safety/Recalls/ucm606033.htm. This product is labeled gluten-free
- September 1, 2016: Koi Palace Mooncakes: https://www.fda.gov/Safety/Recalls/ucm518878.htm. It is unclear whether this product was labeled gluten-free at the time of the recall.
How many potentially facially misbranded products, including those containing barley malt ingredients and hydrolyzed wheat protein have been reported to FDA staff by Gluten Free Watchdog?
- 2016: 14 products
- 2017: 17 products
- 2018 (to date): 9 products
Note: Some products are included in more than one year as they remain on store shelves.
Note: The above listing does not include foods tested by Gluten Free Watchdog and found to contain levels of gluten of at least 20 parts per million.
Based on the above information, it appears that FDA is not recalling products labeled gluten-free that include in the ingredients list: malt, malt extract, malt syrup, malt vinegar, and wheat as a sub-ingredient in shoyu/soy sauce.
Does this mean FDA allows the above named ingredients to be included in foods labeled gluten-free?
- FDA on soy sauce: “If a soy sauce is made from wheat and soybeans, “wheat” is a gluten-containing grain, and, therefore, cannot make the gluten-free claim.”
- FDA on malt extract, and malt syrup: “Malt extract and malt syrup are ingredients derived from gluten containing grains and containing gluten therefore we would consider them as ingredients not processed to remove gluten and they would not be permitted in foods bearing the claim gluten-free.”
Then why isn’t the FDA enforcing the gluten-free labeling rule when it comes to these ingredients? We don’t know.
What recourse does the community have?
- As many of you know, Gluten Free Watchdog filed an FDA citizen petition requesting that the FDA establish a specific protocol for increased surveillance, investigation and enforcement of potential facial misbranding violations under the gluten-free labeling rule.
- On February 13, 2018 the FDA issued an interim response stating, “we have not reached a decision on your petition within the first 180 days due to competing priorities. However, be advised that your petition is currently under active evaluation by our staff.”
- There have been no further public updates from FDA.
- On February 13, 2018 the FDA issued an interim response stating, “we have not reached a decision on your petition within the first 180 days due to competing priorities. However, be advised that your petition is currently under active evaluation by our staff.”
Is there legal recourse if the FDA is not enforcing the gluten-free rule? Hmm.
Comments (4)
Regarding your question about legal recourse if the FDA is not enforcing the gluten-free rule it would be difficult. The FDA is protected like all government entities (federal, state, county, city) by sovereign immunity. However, there is the Federal Tort Claim Act that some have used in federal lawsuits but with limited success because it exempts failure to exercise or perform discretionary function or duty.
I am not a lawyer or have any legal expertise but have read about the difficulty and expense to sue government agencies.
The recourse with FDA is for a powerful majority party member of Congress to find out that their son or daughter has Celiac disease. Then they will exert pressure on FDA.
It’s vital that products that are marked as ‘gluten-free’ show proof of it on their ingredient list on their label! This not only includes food and other ingestible items but also on items that are used topically or even touched (i.e.,pre-pasted wallpaper, stamps, envelopes, etc.). For those of us who have Celiac Disease, such mis-markings can be a matter of life or death! And I can tell you that more people of All ages are being diagnosed with Celiac Disease! Whenever items have been mis-labeled, “YOU” should immediately have those items removed from the shelves to help protect us-Consumers! Thank You Very Much! Sincerely, Joan M. Greenert
One just has to think…is there a connection between the medical field (which makes money) and government doing the job they are getting paid to do? Or is it that big Pharma has their hand in the works? God Bless America where you can have regulations on food!