[Federal Register Volume 67, Number 19 (Tuesday, January 29, 2002)]
[Proposed Rules]
[Pages 4212-4214]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-2133]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 67, No. 19 / Tuesday, January 29, 2002 / 
Proposed Rules  

[[Page 4212]]



DEPARTMENT OF AGRICULTURE

Food Safety and Inspection Service

9 CFR Parts 316, 317, and 381

[Docket No. 92-005N]


Prominently Disclosed Product Name Qualifiers

AGENCY: Food Safety and Inspection Service, USDA.

ACTION: Notice of withdrawal of proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Food Safety and Inspection Service (FSIS) is withdrawing 
the proposed rule, ``Prominently Disclosed Product Name Qualifiers,'' 
which was published in the Federal Register on November 4, 1992 (57 FR 
52596). In the 1992 proposal, the Agency proposed to remove certain 
provisions of the meat and poultry products inspection regulations that 
require that the labeling of meat and poultry products disclose that 
certain ingredients are present in a product through the use of a 
phrase that qualifies the product name. FSIS now believes that this 
proposal is redundant with later Agency initiatives, and that the 
proposal contains a number of errors. Therefore, FSIS is withdrawing 
the proposal and will rely on the initiatives currently under 
development to resolve the issues that had been raised in the proposed 
rule.

ADDRESSES: Send comments to FSIS Docket Clerk, Docket No. 92-005N, Room 
102, Cotton Annex Building, 300 12th Street, SW, Washington, DC 20250-
3700. Any comments received will be available for public inspection in 
the Docket Room from 8:30 a.m. to 4:30 p.m., Monday through Friday.

FOR FURTHER INFORMATION CONTACT: Robert C. Post, Ph.D., Director, 
Labeling and Consumer Protection Staff, Food Safety and Inspection 
Service, Washington, DC 20250-3700, Telephone(202)205-0279, Fax 
(202)205-3625.

SUPPLEMENTARY INFORMATION: In the Federal Register of November 4, 1992, 
FSIS published a proposed rule, ``Prominently Disclosed Product Name 
Qualifiers,'' in which the Agency proposed to remove certain provisions 
from the meat and poultry products inspection regulations that require 
that the labeling of meat and poultry products disclose that certain 
ingredients are present in a product through the use of a phrase that 
qualifies the product name. In the preamble to the proposal, FSIS 
explained that it had required the product name qualifiers as a means 
of alerting consumers to the presence of unusual or unexpected 
ingredients in a product, but that the Agency had come to believe that 
consumers rely more on a product's ingredients statement to determine 
the composition of a food than they did in the past. In the preamble, 
FSIS reiterated its view that it had initially articulated in the final 
rule, ``Standards and Labeling Requirements for Mechanically Separated 
(Species) and Products in Which It Is Used''(47 FR 28214, June 29, 
1982), that unless the addition of an ingredient significantly alters 
the identity of a product, the presence of unusual or unexpected 
ingredients in a product need not always be disclosed in a statement 
that qualifies the product name.
    Since it published the proposal, the Agency has begun a number of 
other labeling reform initiatives that will provide opportunities for 
public comment on the need for product name qualifiers, labeling 
statements, and other required labeling features. As a result of these 
new initiatives, FSIS now considers the subject rulemaking to be 
redundant and unnecessary.
    Furthermore, after careful review, FSIS has recognized that the 
1992 proposal incorrectly categorized some of the subject labeling 
statements about ingredient declarations as product name qualifiers. 
Not all of the labeling statements cited in the 1992 proposal are 
product name qualifiers. For example, FSIS proposed to remove 9 CFR 
317.2(j)(12), which requires that containers of certain meat food 
products preserved in, bearing, or containing any chemical preservative 
bear a label stating that fact. Although Sec. 317.2(j)(12) requires 
containers of certain meat food products to bear a labeling statement 
that discloses the fact that the product is preserved in, bears, or 
contains a chemical preservative, it does not require that the 
statement qualify the product name. Moreover, under section 1(n)(11) of 
the Federal Meat Inspection Act (FMIA)(21 U.S.C. 601(n)(11)), when a 
product contains a chemical preservative, unless the regulations 
provide an impracticability exemption, that fact must appear on the 
product's labeling in order to prevent the product from being 
misbranded.
    In the 1992 proposal, FSIS also mistakenly proposed to remove 
certain supplementary labeling requirements that are necessary to 
distinguish different versions of a particular type of product. For 
example, FSIS proposed to revise 9 CFR 319.180, which defines the 
standard of identity for certain cooked sausages, such as hotdogs and 
bologna, to permit these cooked sausages to contain meat byproducts and 
variety meats without disclosing the presence of these ingredients in a 
product name qualifier. Upon review, FSIS now recognizes that for 
cooked sausages defined under Sec. 319.180, the inclusion of byproducts 
and variety meats affects product identity sufficiently to result in 
distinctive versions of the same product, and that the labeling of 
these products should continue to declare the presence of byproducts or 
variety meats as part of the product name.

Summary of Comments

    FSIS received 20 comments in response to the 1992 proposal, most in 
support of the proposed rule. The following is a general description of 
the comments received and FSIS's response.
    Comments: A few commenters objected to the 1992 proposal. These 
commenters felt that FSIS should continue to require that the presence 
of certain ingredients in a product be disclosed in a statement 
adjacent to the product name so that consumers who wish to avoid these 
ingredients in their diets can easily identify the products that 
contain them. The commenters noted that because of the potential for 
adverse health consequences, it is particularly important for consumers 
with allergies or intolerances to certain food ingredients to know when 
a food contains these ingredients.
    Response: Although it is withdrawing the 1992 proposal, FSIS does 
not believe that removing the required qualifying phrases as proposed 
would deprive

[[Page 4213]]

consumers of the ability to easily identify food with ingredients that 
they wish to avoid in their diets. If a meat or poultry product is 
fabricated from two or more ingredients, all such ingredients must be 
listed on the product label by their common or usual names in 
descending order of their predominance (9 CFR 317.2(c)(2), 317.2(f)(1), 
and 381.118(a)). Thus, if a consumer wants to determine whether a 
product contains a specific ingredient, the consumer can easily find 
this information in the one place specifically designated for this 
purpose, the ingredients statement. In fact, because not all 
ingredients that consumers may wish to avoid, including those that may 
be allergens to some consumers, are required to be identified in a 
statement that qualifies a product name, FSIS expects that consumers 
would look to a product's ingredients statement rather than rely on 
supplementary labeling information to determine the composition of a 
meat or poultry product.
    Comments: Several commenters expressed support for the proposal but 
requested that FSIS remove or amend additional supplementary labeling 
requirements contained in the regulations. Many of the required 
labeling statements that the commenters wanted FSIS to remove or amend 
are qualifying statements that identify ingredients or processing 
methods that affect product identity, and therefore, are needed to 
distinguish different versions of a particular type of product. For 
example, some commenters requested that FSIS remove the qualifying 
statements that are required to appear as part of the name of certain 
fabricated steaks that identify how these products are processed.
    Response: In the preamble to the 1992 proposal, FSIS stated that, 
if the addition of an ingredient affects product identity sufficiently 
to result in distinctive versions of the same product, the labeling of 
the new product must declare the presence of the distinguishing 
ingredient as part of the product name. The same reasoning applies to 
processing methods that affect product identity. For example, the 
standard of identity for certain types of fabricated steaks requires 
that these products be identified by the product name in conjunction 
with a qualifying phrase that describes how these products are 
processed, such as ``Beef Steak, Chopped Shaped, Frozen,'' and ``Minute 
Steak, Formed, Wafer Sliced, Frozen,'' and ``Veal Steaks, Beef Added, 
Chopped-Molded-Cubed-Frozen, Hydrolyzed Plant Protein and Flavoring''(9 
CFR 319.15(d)). Because the way these products are processed affects 
product identity, the qualifying phrases that describe the processing 
methods are needed to distinguish the fabricated versions of these 
products from the unprocessed versions. Thus, FSIS did not include the 
required labeling statements identified by the commenters as part of 
the 1992 proposal because many of these statements, like the statements 
that disclose the processing methods for certain fabricated steaks, 
pertain to ingredients or processing methods that affect product 
identity.
    However, FSIS and the Food and Drug Administration (FDA) are 
jointly working on a comprehensive approach to modernizing food 
standards that will establish guiding principles for outside parties to 
apply when petitioning FSIS or FDA to revise or simplify a food 
standard. A description of this food standards modernization effort was 
published as an Advance Notice of Proposed Rulemaking (ANPR) in the 
Federal Register on September 9, 1996 (61 FR 47453). Thus, interested 
parties who believe that certain ingredients or processing methods do 
not sufficiently affect product identity to require disclosure in a 
statement that qualifies a product name will have the opportunity to 
request revisions to the standards of identity for meat and poultry 
products through this food standards modernization initiative.
    Comments: In the preamble to the 1992 proposal, FSIS identified 
specific supplementary labeling requirements that do not necessarily 
distinguish different versions of a particular type of product, but 
that the Agency has determined must appear adjacent to the name of 
certain products in order to prevent the labeling of these products 
from being misleading to consumers. For example, meat products with a 
standard of identity that permits or requires the addition of nitrate 
or nitrite but that do not contain nitrate or nitrite must be 
identified as ``Uncured'' (9 CFR 319.2) and must bear the statements 
``No Nitrate or Nitrite Added, Not Preserved,'' and, if they have not 
been sufficiently thermally processed, fermented, or dried, ``No 
Preservatives, Keep Refrigerated Below 40 deg.,'' adjacent to the 
product name (9 CFR 317.17(c)). In the preamble to the proposed rule, 
FSIS stated that it was not proposing to remove these labeling 
requirements because they are needed to provide consumers with clear 
and complete information about the product. FSIS received several 
comments questioning the need for these and other required labeling 
statements and the manner in which they must be displayed in order to 
prevent misleading product labels. Some commenters suggested that some 
of the required information could be effectively communicated to 
consumers without the use of a statement adjacent to the product name.
    Response: FSIS excluded certain supplementary labeling requirements 
from the 1992 proposal because, in the Agency's judgment, these 
statements are necessary to prevent the labeling of certain products 
from being misleading to consumers. In the example cited above, the 
fact that certain meat products are cured or uncured affects product 
identity. Therefore, the term ``Uncured'' is required to distinguish 
the uncured version of the product from the traditional cured version. 
However, because the uncured versions of these products are at a 
greater risk of microbial contamination and spoilage if handled 
improperly, FSIS determined that additional statements that describe 
how to handle the uncured product safely should appear on the product 
label. Furthermore, because the uncured products look and taste very 
much like the traditional cured products, FSIS requires that these 
statements be displayed adjacent to the product name to prevent 
consumers from being misled. When the 1992 proposal was published, FSIS 
determined that this labeling information and the other required 
labeling statements identified by the commenters must continue to 
appear adjacent to the product name to prevent misleading product 
labeling.
    However, as previously mentioned, since the 1992 proposal was 
published, FSIS has begun a number of labeling reform initiatives that 
will provide opportunities for public comment on the need for product 
name qualifiers, labeling statements, and other required labeling 
features. Therefore, interested parties will have an opportunity to 
raise issues related to the need for certain required supplementary 
labeling information and the manner in which it must be displayed 
through these labeling reform initiatives.
    Comments: FSIS received several comments requesting that the Agency 
remove certain supplementary labeling statements described in the Food 
Standards and Labeling Policy Book. For example, the Policy Book states 
that the phrase ``Batter Wrapped Frank on a Stick'' should be used in 
conjunction with the name ``Corn Dog.''
    Response: The Policy Book contains informal food standards that do 
not have the same authority as the food standards codified in the 
regulations. However, FSIS will consider the need for such labeling 
statements described

[[Page 4214]]

in the Policy Book as part of its continuing review of informal 
policies.
    Because the ``Prominently Disclosed Product Name Qualifiers'' 
proposal is no longer necessary and contains a number of errors, FSIS 
is withdrawing this proposed rule (Docket No. 92-005P). FSIS plans to 
rely on the other labeling reform initiatives to resolve issues that 
had been raised in the proposed rule.
    With this notice, FSIS is officially withdrawing the proposed rule 
(Docket No. 92-005P) of November 4, 1992.

Additional Public Notification

    Public awareness of all segments of rulemaking and policy 
development is important. Consequently, in an effort to better ensure 
that minorities, women, and persons with disabilities are aware of this 
notice, FSIS will announce it and provide copies of this Federal 
Register publication in the FSIS Constituent Update. FSIS provides a 
weekly FSIS Constituent Update, which is communicated via fax to over 
300 organizations and individuals. In addition, the update is available 
on-line through the FSIS web page located at http://www.fsis.usda.gov. 
The update is used to provide information regarding FSIS policies, 
procedures, regulations, Federal Register notices, FSIS public 
meetings, recalls, and any other types of information that could affect 
or would be of interest to our constituents/stakeholders. The 
constituent fax list consists of industry, trade, and farm groups, 
consumer interest groups, allied health professionals, scientific 
professionals, and other individuals that have requested to be 
included. Through these various channels, FSIS is able to provide 
information to a much broader, more diverse audience. For more 
information and to be added to the constituent fax list, fax your 
request to the Congressional and Public Affairs Office, at (202) 720-
5704.

    Done at Washington, DC, on: January 24, 2002.
Margaret O'K. Glavin,
Acting Administrator.
[FR Doc. 02-2133 Filed 1-28-02; 8:45 am]
BILLING CODE 3410-DM-P