FSIS moves on label claim sampling program, partially hydrogenated oils
The Food Safety and Inspection Service (FSIS) recently issued two announcements that may be of interest to the meat and poultry industry. First, FSIS announced its plans to launch a labeling claim sampling program. Second, FSIS issued an extension to allow manufacturers to phase out certain uses of partially hydrogenated oils (PHOs).
Sampling for Labeling Claims Verification
FSIS announced plans to expand its efforts to use sampling and testing to verify certain label claims on May 7, 2018. FSIS Notice 26-18, FSIS Sampling for Labeling Claims Verification directs inspection program personnel (IPP) to collect directed labeling verification samples to test whether select labeling claims are accurate.
The label verification program will target two types of products: products in consumer-ready packaging that bear certain labeling claims; and raw ground beef in consumer-ready packaging that bears a nutrition facts panel. The specific labeling claims/product combinations that will be verified through sampling are “soy-free” claims in ready-to-eat products, “raised without antibiotics” in raw chicken parts and “raised without hormones” in raw ground beef. Notice 26-18 also directs IPP to collect samples of raw ground beef in consumer-ready packaging to verify the accuracy of fat and sodium content claims on nutrition facts panels.
Establishments will not be required to hold product pending the sampling findings; however, Notice 26-18 notes IPP will deem a product that bears inaccurate “soy free” or similar claims adulterated and misbranded; FSIS would take regulatory action in these instances. In contrast, the label claim verification results for fat and sodium content, antibiotic-free and hormone-free claims will be reported to FSIS’ Labeling and Program Delivery Staff (LPDS) and Policy Analysis Staff for further review. If there is a discrepancy between the sampling test result and the establishment’s labeling claim, LPDS will issue a letter to the establishment and the Inspector-in-Charge and District Office reporting the findings. Within 30 days of receiving such a letter, establishments will be required to provide LPDS a written response detailing the corrective actions the facility has taken to ensure it is fulfilling the stated label claim. FSIS may take further action if it determines an establishment has failed to take appropriate action or demonstrate fulfillment of a stated claim.
While FSIS has been sampling nutrient content claims in ground beef since 2016, the expansion of the sampling program to labeling claims is likely a harbinger of things to come. Many brands rely on negative labeling claims (e.g, “gluten free,” “raised without hormones”) to differentiate their products from competitors’ products. Oftentimes, consumers place a premium on products bearing these claims. As its testing capability becomes more sophisticated, we can expect FSIS to continue to expand its labeling claim verification sampling.
FSIS Finalizes PHO Phase-Out Plans
The Food and Drug Administration (FDA) is responsible for determining ingredient safety for use in foods. In 2015, FDA issued a final determination that PHOs were no longer “generally recognized as safe” (GRAS) due to concerns about the impact of artificial trans fats on cardiovascular health. When it made its determination, FDA established a deadline of June 18, 2018 for manufacturers to cease using PHOs in their products unless such uses were approved by a food additive petition.
In anticipation of FDA’s GRAS determination, the Grocery Manufacturers Association (GMA) submitted a food additive petition in 2015 seeking approval for using PHOs in three circumstances: (1) as a solvent or carrier for flavoring agents, flavor enhancers, and coloring agents; (2) as a processing aid; and (3) as a pan release agent for baked goods in spray. GMA’s petition also proposed limitations on the concentrations of industrially produced trans-fatty acids that could be included in the PHOs.
On May 18, 2018, FDA issued an announcement rejecting GMA’s petition. It also, however, announced it would provide industry a one-year extension of the compliance date for the PHO uses sought in the GMA petition. Furthermore, FDA announced that most foods produced prior to the compliance date can remain in commerce until Jan. 1, 2020; the PHO uses subject to the GMA petition can remain in commerce until Jan. 1, 2021.
On June 5, 2018, FSIS issued Notice 31-18 directing IPP to implement the same timelines as provided in FDA’s announcements. The agency also clarified regulatory actions that will be taken after each of the respective compliance dates. NP