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FSIS Proposed Nutrition Labeling Rule Placed on Inactive List, Putting National Uniformity at Risk

Last week FSIS’s Revised Nutrition Facts Panel proposed rule was placed on the list of “inactive” regulations, indicating that the rule is no longer a priority and will be reconsidered at an unspecified time in the future.[1] This notice comes after FDA announced last month that it would be postponing the compliance date for its Nutrition and Supplement Facts Label rule and Serving Size rule from July 2018 to an undetermined implementation date.[2]

FSIS’s proposed rule and FDA’s final rules essentially mirror each other in establishing a new format for Nutrition Facts panels, serving sizes, and reference daily intakes. In May 2016 FDA was the first to finalize its rules amending the presentation of nutritional information to reflect the outcome of newer nutrition and public health research.[3] Upon review of FDA’s regulations, FSIS released its own proposed rule in March 2017, proposing to amend the nutrition labeling requirements for meat and poultry products to parallel FDA’s final regulations.[4] The stated intent was to clarify information for consumers and to improve efficiency and consistency in the marketplace.

More specifically, FSIS’s proposed rule would update the list of nutrients that are required or permitted to be declared, provide updated daily reference values (DRVs) and reference daily intake (RDI) values, revise the format of the Nutrition Facts label, amend the definition of a single-serving container, and update and modify several reference amounts customarily consumed (RACCs). FSIS had also previously announced that it would allow meat and poultry labels to use the new FDA format until FSIS was able to finalize its own nutrition labeling regulations.[5] Meat and poultry companies that volunteer to use the new FDA format must submit at least one label sketch to FSIS’s Labeling and Program Delivery Staff (LPDS) for approval, and they must follow the new RDIs, revised list and definition of nutrients, and new reporting requirements. However, the RACCs under FDA’s regulation are only for FDA regulated products, which means that old USDA RACCs will still apply to the revised labels.

The inactivation of FSIS’s proposed rule serves to increase the potential inconsistency between nutrition labeling requirements for FSIS and FDA regulated products. Open questions now include what level of deviation the FSIS rule may have following the delay, whether there will be a large gap in compliance dates between the two regulations, and if there is a possibility that FSIS may withdraw its proposed rule all together. Issues here of law, policy, and process are all complicated by the fact that FDA has finalized its rule to change the Nutrition Facts panel while FSIS has not. Whether such issues will resolve themselves in a fashion that leads to national food label uniformity remains to be seen.


[1] See Office of Mgmt. & Budget, Exec. Office of the President, Current Unified Agenda of Regulatory and Deregulatory Actions.

[2] See Extension of Compliance Date for Nutrition Facts Label Rule and Serving Size Rule, RIN: 0910-ZA49 (June 21, 2017).

[3] See Food Labeling: Revision of the Nutrition and Supplement Facts Labels, 81 FR 33742 (May 27, 2016); Food Labeling: Serving Sizes of Foods That Can Reasonably Be Consumed at One-Eating Occasion; Dual-Column Labeling; Updating, Modifying, and Establishing Certain Reference Amounts Customarily Consumed; Serving Size for Breath Mints; and Technical Amendments, 81 FR 34000 (May 27, 2016).

[4] Revision of the Nutrition Facts Labels for Meat and Poultry Products and Updating Certain Reference Amounts Customarily Consumed, 82 FR 11324 (Feb. 22, 2017).

[5] Nutrition Facts Label Compliance, 81 FR 80631 (Dec. 16, 2016).

Copyright © 2017 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

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About this Author

Partner

Robert G. Hibbert is a partner in Morgan Lewis's FDA and Healthcare Practice. Mr. Hibbert focuses his practice on federal regulation of the food and agricultural industries, with an emphasis on the U.S. Department of Agriculture (USDA). He also advises clients with regard to food safety and security, animal health, biotechnology, labeling, advertising, and new product development.

202-739-5611
Suzanne Bassett, Morgan Lewis Law Firm, Healthcare Law Attorney
Associate

Suzanne Bassett advises clients in matters involving products regulated by the US Food and Drug Administration (FDA) including prescription and non-prescription drugs, medical devices, food and food additives, generally recognized as safe (GRAS) substances and packaging, dietary supplements, and cosmetics.

202-739-5656