Online retail provision of information

The results of our scan of regulated information through online retail platforms are shown in Table 1. The required Nutrition Facts Panel was present, conspicuous and legible for 45·7 % of the ten products across retailers (ranging from 11·1 % to 80·0 % by product) and the ingredient list was present, conspicuous, and legible for 54·2 % of all observations (ranging from 33·3 to 80·0 %). These two required disclosures were not present at all for almost 11 % of products across retailers. As noted in Table 1, there were also differences across similar products from the same manufacturer: Honey Nut Cheerios v. regular Cheerios and Capri Sun drinks, which contain varying amounts and types of added sweeteners and juice^{(Reference Pomeranz and Harris19)}. The least consistently disclosed required information was common food allergens, not present for 63·5 % of products that contain common allergens (22·2–87·5 %), followed by required per cent juice which was not present for 38·3 % of the fruit drinks (22–62·5 %). Overall, required information was present, conspicuous and legible an average of only 36·5 % of the time across these four mandatory information categories for all products surveyed.

Table 1

Percentage of product information items displayed and readily available for ten products across nine major US online retailers in January–February 2021

* Cheerios contains no common food allergens but is in a category where potential food allergens are common so was included in the analysis. The average total Not Present for Food Allergens excluding Cheerios is 63·5 %.

Notes: values represent percentages of each product from the nine major online retailers; the number of retailers that sold each product is indicated in parentheses after each product name. ‘Present, Conspicuous and Legible’ refers to the information being present and visible without additional clicking or scrolling and without legibility concerns (e.g. small print, blurriness). Percentages exclude products where the claim is inapplicable (i.e. ‘% juice’ for non-fruit drinks or potential allergens for product categories without any common food allergen ingredients, marked n/a) or where an item was missing.

In contrast, voluntary health and nutrition-related claims on the product package image were present, conspicuous and legible across 63·5 % of retailers and products. Online retailers also displayed such claims directly in the web page texts themselves across 38·8 % of products, for example, Coca-Cola had a ‘low sodium’ claim on one website – something not found on its packaging.

Legal assessment

This research identified existing authorities that may directly apply to online food retail or could serve as models for future regulation, as set forth in Table 2.

Table 2

US federal agencies’ regulatory authority to require food retailers disclose mandated food labelling information prominently and conspicuously online

The FDA has authority over ‘labels’ and ‘labelling’ which are ‘written, printed or graphic matter’ ‘upon the immediate container’ or ‘accompanying’ the product, respectively⁽²⁰⁾. The FDA and US courts have consistently interpreted the term ‘labelling’ broadly, to go beyond labels and shelf tags to include ‘all written, printed, or graphic matter accompanying an article at any time while such article is in interstate commerce or held for sale after shipment or delivery in interstate commerce^(21,22) ’.

A seminal Supreme Court case on FDA’s authority over ‘labelling’ is Kordel v. USA ⁽²³⁾. The FDA enforces provisions against misbranding for food and drugs, among other products. In Kordel v. USA., a drug company’s product was found to be misbranded even though the statements in question were on pamphlets shipped to consumers separate from the drugs themselves. The Court found the products and pamphlets were ‘interdependent’ because the pamphlets supplemented or explained the products⁽²³⁾. The Court stated that labelling requirements could not be circumvented by designating information as ‘advertising’ when it ‘performs the same function’ as it would if it were on the article, container or wrapper⁽²³⁾. Therefore, the Court found that ‘advertising which performs the function of labelling’ is under the purview of the FDA. It is thus possible that since the display of food products online performs the same function as labelling for online consumers, online food sales may be under the purview of the FDA even if it is also considered advertising. If this is the case, online food retailers could not circumvent FDA’s labelling regulations.

In addition to proscribing information required to be displayed on food labels, the FDA ensures required information is ‘prominently placed’ and ‘with such conspicuousness’ ‘as to render it likely to be read and understood’ by consumers ‘under customary conditions of purchase and use^(12,24) ’. The ‘customary conditions of purchase’ now seems to include online food sale through retailer web pages; in this case, the prominent and conspicuous requirement for mandatory nutritional information may be considered to apply to the online display of food products for sale.

The FDA also has the authority to update certain regulations⁽¹¹⁾ and the agency used this authority in 2016, to revise the Nutrition Facts Panel. Another clause of the same provision permits the FDA to pass regulations to require any required information on labelling ‘to be highlighted’ with ‘larger type, bold type or contrasting colour’ if it ‘determines that such highlighting will assist consumers in maintaining healthy dietary practices⁽¹²⁾’. This may be interpreted as authority for the FDA to engage in rulemaking to highlight required information online to address deficiencies and support healthy dietary practices.

Turning to the FTC, the agency has consumer protection authority to address false, deceptive and unfair acts or practices related to food advertising, marketing, promotion, mail order and online sales^(25,26) . Unfair is defined as an act or practice that ‘causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition⁽²⁷⁾’. Retailers’ failure to display required information and the inconsistency across products and retailers may render it unclear to consumers that such information is missing, making the deficiency unavoidable. This is especially concerning for consumers who have limited options for online delivery due to their location (e.g. rural area) or if they are SNAP participants using an approved SNAP retailer. There is also a potential for health harm for failure to disclose common food allergens and other ingredients of concern such as Na, making these deficiencies likely to cause injury.

Deception is defined as a ‘representation, omission or practice’ that is ‘material’ and likely to mislead a consumer, ‘analysed from the perspective of a consumer acting reasonably in the circumstances⁽²⁸⁾’. Materiality can be found if the act or practice is likely to affect consumers’ decision with respect to the product, meaning they would have ‘chosen differently but for the deception⁽²⁸⁾’. Retailers’ failure to provide required information may be deemed a material omission because it is likely to mislead consumers to purchase products they may not have otherwise. Reasonable consumers may not have purchased the food online or the specific food they purchased, but for the lack of required information.

Congress has also granted the FTC authority to prescribe ‘interpretive rules and general statements of policy⁽²⁹⁾’, but rulemaking under the FTC Act takes years to complete^{(Reference Campbell30)}. Nonetheless, FTC has rules that provide precedent for the regulation of required information for online food retailers. For example, wool products are considered ‘falsely or deceptively advertised in any mail order promotional material’ unless the ‘product description states in a clear and conspicuous manner’ the country of origin⁽³¹⁾. The FTC thus requires clear and conspicuous country of origin information in mail order catalogues and promotional material⁽³²⁾, defined as ‘any materials, used in the direct sale or direct offering for sale’, disseminated in print or electronically to consumers to solicit purchase ‘without examining the actual product purchased ⁽³³⁾’, – just like for online food retail. The FTC also has limited regulatory authority over retail food stores in relation to stores’ accurate representations of stock and availability in advertisements^(34,35) . This regulation further highlights FTC’s authority for overseeing misrepresentations related to advertising by food retailers.

Lastly, we identified regulatory authority of the USDA over retail food stores. Congress granted the USDA discretionary authority to identify factors for consideration and designate which stores are authorised to accept and redeem SNAP benefits^{(Reference Williamson36,37)} . As such, the USDA has the authority to issue regulations related to the approval of SNAP retail food stores, including those ‘whose participation will effectuate the purposes’ of SNAP⁽³⁷⁾, one of which is to raise nutrition levels of participants⁽³⁸⁾. For example, although Congress designated the stocking requirements for retail food stores to qualify to accept SNAP (i.e. the number of foods in each staple and perishable food category)⁽³⁹⁾, the USDA used its discretion to further alter eligibility criteria (e.g. the depth of stocking required)⁽⁴⁰⁾. Congress therefore envisioned that the USDA would have the regulatory authority to require SNAP retailers engage in additional practices to further the goals of the programme. Moreover, Congress amended the definition of SNAP ‘retail food store’ to include an ‘online entity that sells food’ in 2018⁽⁴¹⁾. Thus, the USDA appears to have the authority to require online retailers, as a prerequisite to qualifying as SNAP retailers, to prominently, conspicuously and legibly display required information to support the nutritional purpose of the programme.