JPA Regulatory Update: FDA Extends Comment Period - Use of the “Natural” Term in Food Labeling; Vermont Genetically Engineered Food Labeling Law - Clarification Regarding Added Water in Beverages; Hogan Lovells Memorandum - Congress Repeals USDA Country of Origin Labeling (COOL) for Beef and Pork; FDA Enforcement Report - Patulin in Apple Juice; FDA Warning Letter – Juice HACCP
FDA Extends Comment Period - Use of the “Natural” Term in Food Labeling
In November 2015, JPA notified members that the Food and Drug Administration (FDA) had announced the Agency is soliciting comments and information regarding use of the term "natural" on food labels. The Federal Register notice (80 FR 69905; November 12, 2015), which outlines the questions in which the FDA is seeking input is available here. It was reported that the FDA had established February 10, 2016 as the deadline to submit comments.
Today, the FDA issued a Federal Register notice (80 FR 80718), available here, announcing the Agency has extended the deadline to submit comments to May 10, 2016 in response to requests for a 90-day extension. A JPA Task Force has been formed to develop comments on behalf of JPA. A copy of the draft comments will be shared with members for review and input.
Vermont Genetically Engineered Food Labeling Law - Clarification Regarding Added Water in Beverages
JPA has been providing updates regarding Vermont’s law to mandate the labeling of genetically engineered (GE) foods, which becomes effective on July 1, 2016. Earlier this year, JPA members were notified that the Vermont Attorney General’s Office had issued a guidance (or Annotated Rule), available here, explaining certain provisions of the law.
The law provides an exemption from the labeling requirements, in part, if the aggregate weight of the GE material in the food is no more than 0.9 percent of the total weight of the food. The Attorney General notes in the guidance document that the weight of the food should be calculated exclusive of added water and salt.
The Grocery Manufacturers Association (GMA) earlier requested clarity regarding the exclusion of added water in beverages, including juices, as noted below.
GMA Question: In §121.02(e) of the Annotated Rule, the comment states that the total weight of the food should be calculated exclusive of added water and salt when determining if it contains .9 percent or less of genetically engineered content. What does the State mean by “added water?” Would a company have to exclude water from the typical 12-fluid ounce soda or sports drink sweetened with high-fructose corn syrup when determining the total weight? When it comes to reconstituted juices, water is added to juice concentrate to get it to single-strength. Does that water have to be excluded when measuring total weight or, like the National Organic Program, can that water be included? Where there is less than single-strength juice (such as in juice cocktails) and then added water, does that added water get excluded from the weight?
Vermont Attorney General Office's Response: The intent of the comment is to exclude added water that is not an integral part of the food being offered for sale. In the examples of beverages you provide, water would seem to be integral to what is being offered to the consumer.
JPA will continue to monitor implementation of the food labeling law and will provide updates, as information becomes available.
Hogan Lovells Memorandum - Congress Repeals USDA Country of Origin Labeling (COOL) for Beef and Pork
JPA has previously notified members that Canada and Mexico were considering imposing retaliatory trade sanctions on certain U.S. products due to a dispute over the U.S. country of origin labeling (COOL) requirements for beef and pork products. The COOL regulations provided that U.S. origin labeling would be permitted only on meat obtained from animals born, raised, and slaughtered in the U.S. Canada and Mexico challenged the regulation and ultimately, the World Trade Organization (WTO) ruled against the U.S. It was earlier reported that frozen orange juice, apples and cherries were on Canada's 2013 preliminary retaliation list of targeted products.
Hogan Lovells has published a memorandum, available here, noting that Congress has repealed the COOL program for beef and pork.
FDA Enforcement Report - Patulin in Apple Juice
The FDA's Enforcement Report, available here, announces a recall of Kroger 100% Natural Apple Juice from Concentrate due to elevated levels of patulin in the product. The FDA's action level for patulin in apple juice and apple juice products is 50 parts per billion (ppb). According to the report, a test by the Alabama Department of Agriculture showed patulin levels three times greater than the legal limit.
FDA Warning Letter – Juice HACCP
The FDA recently published a Warning Letter to Harmless Harvest Thailand citing serious violations of the juice Hazard Analysis and Critical Control Point (HACCP) regulation (21 Code of Federal Regulations Part 120). A copy of the Warning Letter is available here.
As always, please contact me with questions or comments.
Patricia Faison
(404) 252 - 3663