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Product Labeling – What Does “Gluten Free” Really Mean?


Season 3, Episode 3 – With the rise of “gluten-free marketing” and the growing, multi-billion dollar “gluten-free” industry, current estimates show that nearly 30% of the population is actively avoiding gluten for health or personal reasons.  Yet, gluten-free food labeling can be confusing, and the governing regulations are complex.  To make sense of it all, JDSA attorney Sally White discusses Product Labeling – What Does “Gluten-Free” Really Mean?

Product Labeling – What Does “Gluten Free” Really Mean?
Sally White

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Announcer:  This is JDSA’s Law Talk. This is the program that gives you the straight facts on our laws, and how they affect your everyday personal and professional life.

Host:  Welcome to JDSA’s Law Talk. I’m your host, Clint Strand. On JDSA’s Law Talk, we strive to simplify often complicated legal issues. Our attorneys choose a topic and break it down in conversation using examples and clear explanations. In short, we make sense of everyday legal topics.

On this episode of JDSA’s Law Talk, JDSA attorney Sally White talks about product labeling.Specifically, gluten. What does gluten-free really mean? We see it everywhere. Sally good to see you.

Sally:  It’s good to be here.

Host:  So, when we say gluten-free, we might not really mean gluten-free.

Sally:  That’s right, it doesn’t always mean absolutely free of gluten.

Host:  I guess the devils are in the details, right?

Sally:  They are.

Host:  We’ll get into them next, right here, on JDSA’s Law Talk.

Announcer:  This is JDSA’s Law Talk. Hear more programs and read in-depth articles on the law at jdsalaw.com.

Host:  If you have a question about today’s topic, or a topic suggestion for a future episode, email us at [email protected].

Today we’re talking with our featured attorney Sally White about product labeling, and what gluten-free really means. So, Sally, let’s get into the basics and our definitions. When we say gluten, what is gluten? And why is it such a hot topic?

Sally:  Well gluten is a generic name for proteins found in most types of wheat, rye and barley.So, we’re talking about breads, baked goods, soups, pastas, cereal, items like that. But there may be hidden gluten in other types of foods. For example, energy bars, French fries, potato chips, processed lunch meats.

Host:  Lunch meats?

Sally:  Yeah, it can be there. Also, types of candy, tortillas. There’s a number of different types of foods that you wouldn’t expect it. And you also have to think about items that may not be food products, but they might be consumed, like lipstick or lip balm, communion wafers, vitamins and supplements, medications, Play-Doh, pet food.

Host:  Now there are some real health conditions that demand that they not consume or come into contact with glutens, yes?

Sally:  Yeah, there are. Celiac disease and other gluten sensitivities, they’re actually recognized illnesses by world renowned research centers and health clinics. And so, celiac disease, it’s a buzzword that you might hear, it’s known as an autoimmune disorder in which the small intestine is hypersensitive to gluten, leading to difficulty in digesting food. And there’s lots of people that are affected by celiac disease. Estimates at present are that roughly 1% of Americans, or 3 million people are suffering from celiac disease. In contrast, there are approximately 2 million people that are affected by Alzheimer’s disease.

Host:  Okay, that puts it into perspective.

Sally:  And there’s even more that may have some connection to this issue. Roughly 6-7% of the population suffers from a non-celiac gluten sensitivity. And in addition, there are approximately 30% of the U.S. population that is actively trying to avoid gluten.

Host:  For whatever reason.

Sally:  Exactly. I will mention that most medical professionals say you should not avoid gluten unless you have an absolute medical need to do so, although a lot of people do choose to avoid gluten, just because it’s trendy.

Host:  Well, it’s big business, right?

Sally:  It is big business. Fortune Magazine reported that in 2015, sales of products with a gluten-free label had doubled since 2011, rising from 11.5 billion dollars, to more than 23 billion dollars.

Host:  Those are a lot of zeros.

Sally:  They are. So, whether it’s trendy or necessary for health reasons, there are a lot of questions surrounding product labeling and truth in advertising when it comes to gluten-free claims.

Host:  All right Sally, I’m going to ask a slightly loaded question here. So if a product is said to be “free” of something, I mean, isn’t it?

Sally:  Well the short answer is no.

Host:  Okay. But give me the longer answer.

Sally:  So, in 2013, the U.S. Food and Drug Administration recognized that there was some lack of clarity regarding gluten-free, as used on labeling. So, the FDA adopted regulations governing the voluntary labeling of food products as gluten-free.

What these regulations mean are that manufacturers do not have to label products as gluten-free, but if they choose to do so, then the product must contain less than 20 parts per million, or ppm, gluten. And then other similarly regulated terms include “no gluten”, “free of gluten”, and “without gluten”.

Host:  Okay, that seems fairly straightforward, but if it were fairly straightforward, we wouldn’t be sitting here having this conversation. So, what about below that 20 parts per million threshold?

Sally:  Well for people who are very sensitive to gluten, it can make a big difference. Although the FDA has said from a regulatory standpoint, that 20 parts per million gluten is a safe level, where manufacturers and brand owners can list on a product gluten-free, there are a lot of people that can’t actually tolerate that level. And so, as a result, below that 20 parts per million threshold, there are a number of ranges and variances in terms of the precise gluten content in food.

One way of dealing with this is that a handful of gluten-free certification organizations have popped up over the years. The Gluten Intolerance Group of North America is the largest such organization in North America. There’s also the organization Beyond Celiac. There’s a gluten-free certification program called the Gluten-Free Certification Program. And these are just to name a few. And what these certification organizations do, is they contract with product manufacturers, and they grant them permission to place their certification seal on their products, and that seal is meant to show consumers that a product bearing the seal is certified by the third-party, to contain a specific level of gluten below that 20 parts per million threshold.

Host:  Which is important for those folks that have a clear definable medical reason to completely eradicate gluten from their diet or come as close as possible.

Sally:  Exactly.

Host:  That being said, everybody likes to skirt just the margins of the rule, and so there are some people that choose to have certifications out there that imply gluten-free, that aren’t that stringent. So, what products can we see out there, what symbols can we see out there that imply gluten-free, that maybe not be so.

Sally:  Well, one thing consumers should look out for is companies that self-certify their products as gluten-free, without using a third-party certification organization. That’s not to say that a company independently verifying their product as gluten-free is lying or is not telling the truth. It just lacks that secondary level of reliability that a third-party also auditing and verifying their gluten-free claim, would add.

In addition, there are organizations out there that claim to be able to verify the gluten content in food at levels as low as three parts per million. Although existing scientific evidence cannot reliably confirm this, at this point in time.

Host:  What if the box implies it is gluten-free, but it doesn’t say the words, and it has something like GF, or something along those lines.

Sally:  Well it’s important to remember that the regulatory scheme by the FDA is currently only specific to the words “gluten-free”, “no gluten”, “free of gluten” and “without gluten”. This means that companies and organizations can adopt a symbol, for example, a picture of wheat with a cross through it, or maybe the word gluten with a cross through it, or the letters GF by themselves. That is not federally regulated.

So in theory, there’s no meaning behind that. It would be important for a consumer to make sure that they’re doing their research into what that symbol that they’re looking at actually means, and who is verifying the meaning of it, if they really have a heightened gluten sensitivity.

Host:  So, if you see those symbols, some would say buyer beware, but certainly do your homework on that particular organization, or that particular product.

Sally:  Exactly.

Host:  Okay, so let’s talk the nitty-gritty on regulation here. How exactly are gluten-free labels regulated?

Sally:  Well, as we discussed, the FDA is the entity that established the regulatory scheme. The FDA has issued a guide for the industry, to help compliance with the new requirements. The FDA may do things like perform food label reviews, follow up on consumer and industry complaints, and analyze food samples.

Also, there are mechanisms for consumers and manufacturers to report a complaint to an FDA consumer complaint coordinator in the state where the food was purchase.

In addition to the FDA’s regulatory scheme, the Federal Trade Commission, abbreviated FTC, has also started going after companies who self-certify products in a misleading way.

Host:  So, what’s an example of that?

Sally:  Well if a company uses a certification seal that says, “Certified Gluten-Free”, but that company does not disclose to consumers that it is not a third-party certification, but it is just a self-certification of that company, the FTC has shown that they will go after companies for false advertising in that manner.

Host:  How can you do your own investigating? How can you tell if a packaged food product is indeed gluten-free? What other tools do you need? We’ll talk about that coming your way next, right here, on JDSA’s Law Talk.

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Welcome back to JDSA’s Law Talk. I’m your host, Clint Strand, talking with featured attorney, Sally White about product labeling. Specifically gluten, and what does gluten-free really mean.

Well Sally, we set the scene in our last conversation, now let’s talk about packaging, and arming yourself with information. If you’re a consumer, how can you tell if a packaged food product is really and truly gluten-free?

Sally:  Well first let’s remember that “gluten-free” does not mean completely free of gluten. If for health reasons you must adhere to a diet completely free of gluten, you should consult with a medical professional about how to satisfy your dietary requirements.

But to the extent a consumer can safely consume products containing up to 20 parts per million gluten, the consumer should look for a gluten-free label, ideally a third-party certification seal. This may be the most reliable evidence that a product contains a low level of gluten, since it must satisfy the FDA’s regulations, and it is also independently verified by a third-party.

Also, a consumer should independently verify that a particular product is actively certified by the third-party organization, by checking that organization’s website.

Host:  So again, a bit of homework, but if your health truly depends upon being gluten-free, it’s effort well invested.

Sally:  Exactly. Now if there’s no third-party certification seal, the consumer needs to understand what a company’s self-certification mark means. So as you said, do your homework. Does a company symbol of gluten with a cross through it really mean that it contains less than 20 parts per million gluten, or is it just a marketing scheme to attract purchasers?

Host:  Unregulated symbol.

Sally:  Exactly. That’s a symbol that’s not regulated by the FDA. So in theory, it could mean a variety of different things.

Host:  Legally, they could claim that it can mean a variety of different things. Okay what else should you look for?

Sally:  Well you should also check the ingredients list. It’s important to remember that wheat-free does not necessarily mean gluten-free. Check the allergen listing. However, keep in mind that a lack of allergen labeling does not mean that the product is gluten-free. Barley and rye are not in the top eight allergens required to be listed. And check for obvious gluten containing ingredients, such as wheat, barley, rye, brewer’s yeast, etc.

Host:  All right. Let’s talk about tools that consumers can use. Are there any specific resources to help gluten-free consumers? This feels like an awful lot of homework.

Sally:  Right, so today we talked a lot about these third-party gluten-free certification organizations. And they are a great resource. These organizations offer consumer support, advocacy and education. A lot of them have links on their websites, where consumers can filter and browse for products and recipes that are gluten-free.

For example, the Gluten Intolerance Group of North America, which is the largest gluten-free certification organization in North America, has a buyer and distributor guide listing more than 50 thousand food products worldwide, that are certified gluten-free by their organization.

Host:  Fantastic.

Sally:  These websites can also contain gluten-free recipes, links and information about support groups, and ways that you can get involved if this is an interest that’s important to you.

Host:  Once again, that’s the Gluten Intolerance Group of North America. They have a buyer and distributor guide.

Well bring it all together with featured attorney, Sally White, about product labeling, specifically gluten-free labeling. That’s coming your way next, right here on JDSA’s Law Talk.

Announcer:  JDSA’s Law Talk will be right back with more on today’s topic. Add your voice to the show. Email your questions to [email protected].


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Welcome back to JDSA’s Law Talk. I’m Clint Strand. We’re talking with our featured attorney, Sally White, about product labeling and what gluten-free really means. We’ve covered a lot of ground here Sally. And of course, that’s because you and your firm have some experience, and quite a bit of experience with this.

Sally:  We do. We’re acutely aware of issues surrounding glute-free labeling because we represent organizations within this industry. And as we discussed, even in just the last few years, gluten-free has grown to be big business. Multi-billion dollar business worldwide.

For some consumers, it’s necessary that they fully understand the meaning of gluten-free labeling. For others, it may be just a trendy subject, which again, is not recommended by health professionals. But regardless of your motivation, food labeling is nothing to take lightly.

The federal regulations governing gluten-free labeling are voluntary. So, a product that is gluten-free, under the regulations, doesn’t necessarily have to contain that labeling. But if it does, that’s when it’s regulated. And many packaged food producers see this as an opportunity to capitalize on the trend, or the necessity.

So do your homework. Know what these terms mean. Consult an attorney if you have questions or concerns.

Host:  All great information. And we’re glad you shed some light on this for us. Sally White, thanks so much.

Sally:  Thank you.

Host:  And thanks for joining us for this episode of JDSA’s Law Talk. Remember, if you have a legal matter and require solid legal advice, connect with a member of the JDSA law team at jdsalaw.com.

You can also hear Law Talk episodes on other topics and submit your questions or suggestions for a future show. I’m your host Clint Strand, thanks again for joining us on JDSA’s Law Talk.

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