[Congressional Record Volume 164, Number 201 (Thursday, December 20, 2018)]
[House]
[Pages H10425-H10427]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
CODIFYING USEFUL REGULATORY DEFINITIONS ACT
Mr. GUTHRIE. Mr. Speaker, I move to suspend the rules and pass the
bill (S. 2322) to amend the Federal Food, Drug, and Cosmetic Act to
define the term natural cheese.
The Clerk read the title of the bill.
The text of the bill is as follows:
S. 2322
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Codifying Useful Regulatory
Definitions Act'' or the ``CURD Act''.
SEC. 2. FINDINGS.
Congress finds as follows:
(1) There is a need to define the term ``natural cheese''
in order to maintain transparency and consistency for
consumers so that they may differentiate ``natural cheese''
from ``process cheese''.
(2) The term ``natural cheese'' has been used within the
cheese making industry for more than 50 years and is well-
established.
SEC. 3. DEFINITION OF NATURAL CHEESE.
(a) Definition.--Section 201 of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 321) is amended by adding at the end
the following:
``(ss)(1) The term `natural cheese' means cheese that is a
ripened or unripened soft, semi-soft, or hard product, which
may be coated, that is produced--
``(A) by--
``(i) coagulating wholly or partly the protein of milk,
skimmed milk, partly skimmed milk, cream, whey cream, or
buttermilk, or any combination of such ingredients, through
the action of rennet or other suitable coagulating agents,
and by partially draining the whey resulting from the
coagulation, while respecting the principle that cheese-
making results in a concentration of milk protein (in
particular, the casein portion), and that consequently, the
protein content of the cheese will be distinctly higher than
the protein level of the blend of the above milk materials
from which the cheese was made; or
``(ii) processing techniques involving coagulation of the
protein of milk or products obtained from milk to produce an
end-product with similar physical, chemical, and organoleptic
characteristics as the product described in subclause (i);
and
``(iii) including the addition of safe and suitable non-
milk derived ingredients of the type permitted in the
standards of identity described in clause (B) as natural
cheese; or
``(B) in accordance with standards of identity under part
133 of title 21, Code of Federal Regulations (or any
successor regulations), other than the standards described in
subparagraph (2) or any future standards adopted by the
Secretary in accordance with subparagraph (2)(I).
``(2) Such term does not include--
``(A) pasteurized process cheeses as defined in section
133.169, 133.170, or 133.171 of title 21, Code of Federal
Regulations (or any successor regulations);
``(B) pasteurized process cheese foods as defined in
section 133.173 or 133.174 of title 21, Code of Federal
Regulations (or any successor regulations);
``(C) pasteurized cheese spreads as defined in section
133.175, 133.176, or 133.178 of title 21, Code of Federal
Regulations (or any successor regulations);
``(D) pasteurized process cheese spreads as defined in
section 133.179 or 133.180 of title 21, Code of Federal
Regulations (or any successor regulations);
``(E) pasteurized blended cheeses as defined in section
133.167 or 133.168 of title 21, Code of Federal Regulations
(or any successor regulations);
``(F) any products comparable to any product described in
any of clauses (A) through (E); or
``(G) cold pack cheeses as defined in section 133.123,
133.124, or 133.125 title 21, Code of Federal Regulations (or
any successor regulations);
``(H) grated American cheese food as defined in section
133.147 of title 21, Code of Federal Regulations (or any
successor regulations); or
``(I) any other product the Secretary may designate as a
process cheese.
``(3) For purposes of this paragraph, the term `milk' has
the meaning given such term in section 133.3 of title 21,
Code of Federal Regulations (or any successor regulations)
and includes the lacteal secretions from animals other than
cows.''.
(b) Labeling.--Section 403 of the Federal Food Drug and
Cosmetic Act (21 U.S.C. 343) is amended by adding at the end
the following:
``(z) If its label or labeling includes the term `natural
cheese' as a factual descriptor of a category of cheese
unless the food meets the definition of natural cheese under
section 201(ss), except that nothing in this paragraph shall
prohibit the use of the term `natural' or `all-natural', or a
similar claim or statement with respect to a food in a manner
that is consistent with regulations, guidance, or policy
statements issued by the Secretary.''.
(c) National Uniformity.--Section 403A(a)(2) of the Federal
Food, Drug, and Cosmetic Act (21 U.S.C. 343-1(a)(2)) is
amended by striking ``or 403(w)'' and inserting ``403(w), or
403(z)''.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Kentucky (Mr. Guthrie) and the gentleman from New Jersey (Mr. Pallone)
each will control 20 minutes.
The Chair recognizes the gentleman from Kentucky.
General Leave
Mr. GUTHRIE. Mr. Speaker, I ask unanimous consent that all Members
may have 5 legislative days in which to revise and extend their remarks
and include extraneous material in the Record on the bill.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Kentucky?
There was no objection.
Mr. GUTHRIE. Mr. Speaker, I yield myself such time as I may consume.
[[Page H10426]]
Mr. Speaker, before us today is a bill to define the term ``natural
cheese.'' The House sponsor is our Speaker from Wisconsin, obviously,
from the cheese State and the dairy State. What we are debating is S.
2322, the CURD Act.
Mr. Speaker, I ask my colleagues to support its passage, and I
reserve the balance of my time.
Mr. PALLONE. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I rise in opposition to the bill we are considering
under suspension of the rules, S. 2322, the Codifying Useful Regulatory
Definitions Act, or the CURD Act.
This bill has not proceeded through regular order and codifies into
the Federal Food, Drug, and Cosmetic Act a highly prescriptive
definition of ``natural cheese'' that should be determined by the FDA,
not by Congress.
This legislation creates a statutory definition for a specific
category of cheese and expressly distinguishes what shall be considered
natural cheese from the other standards of identity for processed
cheese currently defined in regulation. The bill then codifies these
regulatory standards of identity into the statute and expressly
preempts any non-Federal definition of the term ``natural cheese.''
The FDA has the authority to define this term, yet proponents of this
legislation prefer legislative expediency over sound regulatory
decisionmaking. Supporters insist that this definition is needed in
statute immediately to assure it quickly applies. However, instead of
waiting to proceed through regular order or following the regulatory
process, stakeholders are asking for an immediate statutory change
because of ongoing litigation that this bill will help to resolve for
some stakeholders.
Mr. Speaker, I am concerned that by rushing this legislation through
we have not been given adequate time to consider the implications for
this change or how this definition might impact consumers and other
industry stakeholders. The FDA is best positioned to consider the
public health impacts of defining this term and how it would interact
with other agency efforts regarding nutrition labeling, such as a
broader definition for the term ``natural.''
Additionally, I am concerned by the precedent this legislation
creates and believe that passing this bill only encourages stakeholders
to seek additional statutory changes or definitional clarity for the
products when they believe the FDA has not acted as expeditiously as
they wish or when they are facing litigation.
We should be making changes to the Federal statute when they are
necessary and in order to protect the public health, not when industry
is seeking a favorable outcome that could be achieved through
regulatory process. I do not believe this change is warranted in this
circumstance.
Finally, Mr. Speaker, I strongly believe that legislation like the
CURD Act should be considered through regular order, and I am opposed
to this bill, given that the House of Representatives has held no
hearings on this issue and has not marked up the bill under
consideration today. The Senate passed this bill in the dead of night,
with no discussion or debate on the floor. I believe we are abdicating
our duty to fully consider the implications of this statutory change if
we pass this bill today.
On the substance, Mr. Speaker, the Center for Science in the Public
Interest, Consumer Reports, and The Good Food Institute are all opposed
to this legislation and have raised serious concerns about the impact
of this change on consumer confusion and transparency. I include in the
Record letters in opposition to the bill from all three.
Center for Science
in the Public Interest,
Washington, DC, December 19, 2018.
Dear Member: The Center for Science in the Public Interest
writes to urge you to oppose the CURD Act (H.R. 4828, S.
2322). This misguided bill would define ``natural cheese'' in
a way that actually muddles, rather than clarifies, the term.
For example, it would allow the use of artificial colors and
additives in ``natural cheese'' and would also make labeling
for cheese inconsistent with U.S. Department of Agriculture
(USDA) labeling requirements and possibly also with the Food
and Drug Administration's (FDA's) labeling requirements for
other ``natural'' foods. The bill could also prevent the term
``natural'' from being used on non-dairy cheese alternatives
that may otherwise rightly be considered natural by
consumers.
The stated purpose of the bill is to draw a clear line for
consumers between ``natural cheese'' and processed cheese.
Yet we have seen no evidence that consumers are confusing
processed cheese with natural cheese in the marketplace. The
FDA's current standards of identity for processed cheese
types already require that these cheeses include a specific
statement of identity on the label indicating that they are
``process cheese.'' And there are currently strong incentives
for the manufacturers of process cheese to avoid ``natural''
claims, as this could expose cheesemakers to liability.
Rather than protecting consumers, the bill would confuse
them by permitting misleading ``natural'' claims on products
that most Americans would not consider natural. For example,
a nationally representative telephone survey conducted in May
2018 by Consumer Reports found that more than 80 percent of
consumers say ``natural'' should mean no artificial
ingredients were used. Yet the CURD Act allows for the use of
synthetic food dye, artificial flavors, and other artificial
additives in so-called ``natural cheese.'' Similarly, an
overwhelming majority of Americans surveyed felt that use of
the term ``natural'' should be reserved for foods that deploy
natural agricultural practices to produce the food's
ingredients, including by limiting the use of hormones,
pesticides, and antibiotics. In contrast, the bill would
allow the term ``natural cheese'' to appear irrespective of
the agricultural practices used to produce the cheese's
ingredients.
The bill would also make labeling for ``natural cheese''
inconsistent with USDA and with likely future FDA
requirements for ``natural'' on food labels in general. The
USDA currently permits the use of the term ``natural'' on
products that contain no artificial ingredient or added color
and which are only minimally processed. In addition,
understanding that ``natural'' can have many meanings, the
USDA requires a brief statement of meaning on labels to avoid
confusion, stating, that the food is ``*no more than
minimally processed and contains no artificial ingredients.''
The FDA is also currently considering adopting a definition
of ``natural'' and may create similar requirements based on
comments in its public docket on the issue. Yet the bill
would authorize the claim ``natural cheese'' to be used on
cheese in a manner that fails to align with either the USDA's
current rules or prospective FDA requirements, leading to
inconsistency and confusion across the marketplace.
Finally, the bill defines ``natural cheese'' in a manner
that could be interpreted to prohibit use of the term on non-
dairy alternatives intended for consumers who are vegan,
lactose intolerant, or who otherwise wish to avoid dairy
cheeses. Use of the term ``natural'' should not be prohibited
on these products, provided the products otherwise meet
consumer expectations for use of this term.
The FDA is currently working on a definition of ``natural''
that would be non-misleading, based on consumer
understanding, and apply uniformly to all FDA-regulated
foods, including cheese. Congress should not act prematurely
to carve out a definition for ``natural cheese'' before the
agency has taken action to define ``natural'' for other
products.
For these reasons, we urge you to vote ``no'' on the CURD
Act.
Sincerely,
Sarah Sorscher,
Deputy Director of Regulatory Affairs, Center for Science
in the Public Interest.
____
Consumer Reports,
December 20, 2018.
House of Representatives,
Washington, DC.
Dear Representative: Consumer Reports (CR), an independent,
nonprofit member organization that works side by side with
consumers for truth, transparency, and fairness in the
marketplace, urges you to vote no on S. 2322, the Codifying
Useful Regulatory Definitions (CURD) Act. This bill would
only add to consumer confusion at the supermarket and
undermine ongoing efforts to make food labeling clearer and
more consistent.
S. 2322 would amend the Federal Food, Drug, and Cosmetic
Act to set a definition of ``natural cheese'' and prohibit
food from being labeled as ``natural cheese'' unless it meets
that definition. Unfortunately, this seemingly mundane bill
would allow cheese to be labeled ``natural'' even if the
cheese includes artificial ingredients or synthetic
substances, such as yellow food dye, or if the cheese was
produced using methods or pesticides that consumers do not
consider ``natural'' according to our recent survey.
Generally, S. 2322 would permit misleading food labeling on
cheese that is inconsistent with consumers' understanding of
the term ``natural.'' According to Consumer Reports'
nationally representative April 2018 survey of 1,014 U.S.
residents, most Americans think ``natural'' should mean: (1)
that no artificial ingredients were used (81%); (2) that no
added hormones were used during food production (81%); and
(3) that no chemical pesticides were used during food
production (79%). The CURD Act would allow the label
``natural cheese'' on products with any of these
characteristics.
We also oppose S. 2322 because it would undermine ongoing
work at the Food and Drug Administration (FDA) to define
``natural''
[[Page H10427]]
through a process that prioritizes the public interest and
involves the input of all stakeholders. This effort intends
to define the term ``natural'' in a way that is not
misleading and based on consumer understanding, and that
applies to all foods in the marketplace overseen by the
agency. We support this initiative, especially because our
April 2018 survey found that 88% of Americans think that all
companies should meet the same standard for the ``natural''
label. Congress should not short-circuit this important work
by setting a special definition of ``natural cheese.''
The CURD Act ultimately places the interests of cheese
producers ahead of the broad need for consumers to understand
what they're buying and feeding their families. We urge you
to support a clear, consistent, and accountable food
marketplace for consumers, and vote no on S. 2322.
Sincerely,
Jean Halloran,
Director, Food Policy Initiatives Consumer Reports.
Charlotte Vallaeys,
Senior Policy Analyst Consumer Reports.
William Wallace,
Senior Policy Analyst, Consumer Reports.
____
The Good Food Institute,
Washington, DC, December 19, 2018.
Hon. Greg Walden,
Chairman, House Committee on Energy and Commerce,
Hon. Frank Pallone, Jr.,
Ranking Member, House Committee on Energy and Commerce,
Washington D.C.
Re Opposition to the Codifying Useful Regulatory Definitions
Act (``CURD Act'').
Dear Chairman Walden and Rep. Pallone: The Good Food
Institute (``GFI'') is a 501(c)(3) nonprofit organization
that serves as a think tank and accelerator for plant-based
foods and cell-based meat. GFI is comprised of scientists,
entrepreneurs, lawyers, and policy experts focused on using
food innovation and markets to create a more sustainable food
supply. More specifically, we support policies that ensure a
level playing field for plant-based foods and cell-based
meat. We write today to express our opposition to the CURD
Act (S. 2322).
A marketplace that serves consumers well is one in which
products compete on their merits, not on their political
connections. The role of the government in this marketplace
is to ensure that products bear clear, accurate, and
consistent labels that present essential information without
confusing or misleading consumers.
In our view, the CURD Act has three significant flaws.
First, the Act would override FDA's regulatory definition of
milk as it pertains to standards of identity for cheeses by
explicitly including ``the lacteal secretions from animals
other than cows'' but not plant-based milks. The agency's
current definition, 21 C.F.R. Sec. 133.3, states that milk
used in cheese is obtained by the ``complete milking of one
or more healthy cows.'' Of course, there are a wide variety
of cheeses in the marketplace that are made from other kinds
of milks, including goat's milk, sheep's milk, and cashew
milk. The word cheese is allowable so long as these products'
labels clearly communicate to consumers the identity of the
product (that it is made from goat's milk, sheep's milk, or
cashew milk)--just as terms like soy milk, almond milk, and
chocolate milk are allowable on milk cartons. The CURD Act's
expansion of the definition of milk to include lacteal
secretions of other animals, but not plants, suggests that
its intent is protectionist: to permit producers to use the
label ``natural cheese'' when their products contain
ingredients that are not natural (e.g., synthetic dyes) while
simultaneously attempting to deny producers of plant-based
cheeses access to the same term.
Second, the CURD Act would establish a product-specific
definition of the term ``natural'' instead of a consistent
definition set by FDA that would apply to all the food
products it regulates. Setting a product-specific definition
of ``natural'' would likely conflict with how FDA uses it in
other contexts and could result in consumer confusion.
Third, the Act would create a rift between FDA and USDA
regarding the use of ``natural'' on labels. This too could
increase consumer confusion. Since the term ``natural'' can
mean different things to different consumers, USDA currently
requires USDA-approved labels to briefly explain on-label
what a ``natural'' claim applies to. The CURD Act does not
require any such explanation, giving ``natural cheese'' a
free pass to claim it is natural without giving further
information to consumers.
To ensure a fair marketplace that works for consumers, food
labels must be clear to consumers and not privilege one set
of producers over another. By that measure, the CURD Act
fails. We therefore respectfully urge you to oppose the bill
at this time.
Thank you very much for your consideration of this request.
Sincerely,
Jessica Almy, Esq.
Director of Policy, The Good Food Institute.
Kenneth Forsberg, Ph.D.,
Senior Policy Specialist, The Good Food Institute.
{time} 1315
Mr. PALLONE. Mr. Speaker, we should not displace the important role
of the FDA in determining the correct terminology and approach to
regulating and labeling food products like cheese. Changes to the
statute should be considered in broad daylight, with robust discussion
and significant input from consumer, industry, and government
stakeholders.
That has not happened in this case, and for these reasons I oppose
the bill and urge my colleagues to oppose the bill as well.
Mr. Speaker, I yield back the balance of my time.
Mr. GUTHRIE. Mr. Speaker, I support S. 2322, the CURD Act, which
would define the term ``natural cheese'' within the Federal statute
and, with passage, head to the President's desk.
Mr. Speaker, I urge all Members to support the bill, and I yield back
the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Kentucky (Mr. Guthrie) that the House suspend the rules
and pass the bill, S. 2322.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds
being in the affirmative, the ayes have it.
Mr. AMASH. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further
proceedings on this motion will be postponed.
____________________