• If a yogurt bears the statement “contains live and active cultures” or similar language, the product must contain a minimum of 10 million colony-forming units per gram of live and active cultures.
• For yogurt that is treated to inactivate viable microorganisms, the labeling must state “does not contain live and active cultures.”
• Yogurt with 2.44% to 3.25% milk fat must be labeled with the following two phrases which must appear together in the statement of identity:
  • The word “yogurt” in type of the same size and style for each letter
  • The statement “__ percent milk fat” with the blank containing the actual milk fat content of the product rounded to the nearest half percent.

Producers, manufacturers, sellers, and distributors should work to ensure that labels comply with the new requirements by January 1, 2024. Specifically, manufacturers and parties involved in labeling should work to ensure their labels conform to the new standards, and other parties involved in distributing or selling these products should verify that they have sufficient supply agreements and other documentation to shield themselves from unexpected liability related to product labels. Standard of identity changes are typically easy targets for plaintiffs’ attorneys and therefore careful attention must be given to these label changes to ensure stakeholders are protected from litigation risks and government enforcement actions. As always, Reed Smith is prepared to assist clients as they navigate these changes and will keep a close eye on potential risks as these changes take effect.

Client Alert 2023-240