FSIS Proposes Amended Nutrition Labeling Requirements for Meat and Poultry Products

On January 19, 2017, USDA's Food Safety and Inspection Service (FSIS) published a proposed rule to revise its nutrition labeling requirements for meat and poultry products to reflect current scientific research and dietary recommendations. 82 FR 6732. The changes seek to parallel the U.S. Food and Drug Administration's (FDA's) recently revised nutrition labeling requirements.¹   In summary, FSIS is proposing to:

• Update the list of mandatory and voluntary nutrients (i.e., no longer requiring declaration of Vitamins A and C, but requiring declarations for Vitamins D and Potassium);
• Update Daily Reference Values (DRVs) and Reference Daily Intakes (RDI) that are based on current dietary recommendations²;
• Establish a new definition of "dietary fiber" consistent with FDA's definition;
• Require the declaration of added sugars;
• Revise the format and appearance of the Nutrition Facts label (i.e., calories, serving size, and servings per container) prominence, and change the order of the "Serving Size" and "Servings Per Container" declarations;
• Require dual-column labeling for certain containers of meat and poultry products (i.e., products that contain 200-300% of the applicable reference amounts customarily consumed (RACC));
• Amend the labeling requirements for foods represented or purported to be specifically for children under the age of 4 years and pregnant women and lactating women and establish nutrient reference values specifically for these population subgroups;
• Update and modify several reference amounts customarily consumed and product categories; and
• Consolidate the nutrition labeling regulations for meat and poultry products into a new section 9 C.F.R. Part 413.

FSIS issued a notice late last year stating that until this proposed rule is finalized, meat and poultry manufacturers may voluntarily use FDA guidelines on nutrition labeling.³  Once FSIS publishes a final rule to update the Nutrition Facts label format for meat and poultry products, companies would ultimately be required to comply with that final rule (as discussed further below, FSIS is asking for feedback regarding setting a compliance date for this rule).

Potential Implications for Industry

The key implication for industry and consumers alike is the potential for inconsistency between nutrition labeling of meat and poultry products and nutrition labeling of FDA-regulated products.

In theory, the Agency's decision to permit the use of the FDA Nutrition Facts format on meat and poultry products while FSIS is working on the amended regulations should mitigate any such inconsistency. That said, it is not currently clear what level of deviation from the FDA format FSIS will consider compliant with current FSIS labeling regulations and policy.

Looking ahead to a compliance date for this rule, the Agency has laid out three alternative compliance periods in the proposed rule ranging from 12 months to 42 months following the publication of the final rule, and is requesting industry feedback on a preferred compliance period. The significant gap in time between compliance dates for the revised FDA and FSIS nutrition labeling requirements could be problematic for many food companies, particularly those subject to the dual-jurisdiction of FDA and USDA.

Comments

FSIS will be accepting comments on the proposed rule until March 20, 2017. Keller and Heckman LLP attorneys are well-versed in both FDA an USDA nutritional labeling requirements and stand ready to assist interested parties. For additional questions, please contact Melvin S. Drozen, drozen@khlaw.com, Evangelia C. Pelonis, pelonis@khlaw.com, or Brian P. Sylvester, sylvester@khlaw.com.

_________________________

¹            See 81 FR 33742 (May 27, 2016), https://www.gpo.gov/fdsys/pkg/FR-2016-05-27/pdf/2016-11867.pdf and 81 Fed. Reg. 34000 (May 27, 2016), https://www.gpo.gov/fdsys/pkg/FR-2016-05-27/pdf/2016-11865.pdf

²              A detailed discussion of FDA's list of nutrients and RDIs can be found in the preamble of FDA's Nutrition Labeling Rules, see supra note 1.