During the past decade gluten-free has become a $2.6 billion dollar industry. The problem is that many of the products that are labeled gluten-free vary greatly with the amount of gluten actually present. The 2004 Food Allergen Labeling and Consumer Protection Act mandated that the agency designate a federal standard for the term by 2008. The deadline has come and gone, and no standard has been set by the FDA. Many consumers have taken the path to go gluten-free not only because of dietary restrictions but also because of the many benefits associated with a gluten-free diet. However, although there has been a movement towards gluten-free diets, our legislation both in Illinois and federally, has not taken a substantive stance as to what qualifies something as gluten-free.
In the state of Illinois, the Illinois Food, Drug and Cosmetic Act governs the labeling of food products however, it does not specifically govern the labeling of gluten-free products. 410 ILCS 620/11. Under this statute, a food item is misbranded if its labeling is false or misleading in any way. Because the FDA and the Illinois Food, Drug and Cosmetic Act has not set actual guidelines for how gluten-free products need to be marked, it seems possible that if a food is not gluten-free and a consumer has a bad experience with it, they may be able to recover damages under this statute. However, since there is no standard governing what gluten-free food is, it is difficult to predict how food falling under this category would be handled by a court.
Internationally, the Codex Alimentarius has set standards for what qualifies as gluten free, and has pressured the FDA (Food and Drug Administration) to finally define legislation. However, the FDA has yet to establish any legislation to govern the labeling of gluten-free foods.
The growing popularity for a gluten-free diet and pressure for federal legislation means it is only a matter of time before gluten-free foods are more closely regulated.