[Federal Register Volume 70, Number 246 (Friday, December 23, 2005)]
[Rules and Regulations]
[Pages 76150-76162]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-24387]
[[Page 76150]]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Part 101
[Docket No. 2004P-0512]
Food Labeling: Health Claims; Soluble Dietary Fiber From Certain
Foods and Coronary Heart Disease
AGENCY: Food and Drug Administration, HHS.
ACTION: Interim final rule.
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SUMMARY: The Food and Drug Administration (FDA) is amending the
regulation authorizing a health claim on the relationship between oat
beta-glucan soluble fiber and reduced risk of coronary heart disease
(CHD). The amendment adds barley as an additional eligible source of
beta-glucan soluble fiber. We (FDA) are taking this action in response
to a petition that the National Barley Foods Council submitted. We have
concluded, based on the totality of publicly available scientific
evidence that, in addition to certain oat products, whole grain barley
and certain dry milled barley grain products are appropriate sources of
beta-glucan soluble fiber for the health claim.
DATES: This interim final rule is effective December 23, 2005. Submit
written or electronic comments by March 8, 2006. The Director of the
Office of the Federal Register approves the incorporation by reference
in accordance with 5 U.S.C. 552(a) and 1 CFR part 51 of certain
publications in 21 CFR 101.81(c)(2)(ii)(A)(5) as of December 23, 2005.
ADDRESSES: You may submit comments, identified by the Docket Number
2004P-0512 , by any of the following methods:
Electronic Submissions
Submit electronic comments in the following ways:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Agency Web site: http://www.fda.gov/dockets/ecomments.
Follow the instructions for submitting comments on the agency Web site.
Written Submissions
Submit written submissions in the following ways:
FAX: 301-827-6870.
Mail/Hand delivery/Courier [For paper, disk, or CD-ROM
submissions]: Division of Dockets Management (HFA-305), Food and Drug
Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852.
To ensure more timely processing of comments, FDA is no longer
accepting comments submitted to the agency by e-mail. FDA encourages
you to continue to submit electronic comments by using the Federal
eRulemaking Portal or the agency Web site, as described in the
Electronic Submissions portion of this paragraph.
Instructions: All submissions received must include the agency name
and Docket No(s). and Regulatory Information Number (RIN) (if a RIN
number has been assigned) for this rulemaking. All comments received
may be posted without change to http://www.fda.gov/ohrms/dockets/default.htm, including any personal information provided. For
additional information on submitting comments, see the ``Comments''
heading of the SUPPLEMENTARY INFORMATION section of this document.
Docket: For access to the docket to read background documents or
comments received, go to http://www.fda.gov/ohrms/dockets/default.htm
and insert the docket number(s), found in brackets in the heading of
this document, into the ``Search'' box and follow the prompts and/or go
to the Division of Dockets Management, 5630 Fishers Lane, rm. 1061,
Rockville, MD 20852.
FOR FURTHER INFORMATION CONTACT: James E. Hoadley, Center for Food
Safety and Applied Nutrition (HFS-830), Food and Drug Administration,
5100 Paint Branch Parkway, College Park, MD, 20740-3835, telephone 301-
436-1450.
SUPPLEMENTARY INFORMATION:
I. Background
A. The Nutrition Labeling and Education Act of 1990
The Nutrition Labeling and Education Act of 1990 (the 1990
amendments) (Public Law 101-535) amended the Federal Food, Drug, and
Cosmetic Act (the act) in a number of important ways. One aspect of the
1990 amendments was that they clarified FDA's authority to regulate
health claims on food labels and in food labeling. We issued several
new regulations in 1993 that implemented the health claim provisions of
the 1990 amendments. Among these were Sec. 101.14 (21 CFR 101.14),
Health Claims: General Requirements (58 FR 2478, January 6, 1993),
which sets out the rules for the authorization and use of health
claims, and Sec. 101.70 (21 CFR 101.70), Petitions for Health Claims
(58 FR 2478, January 6, 1993), which sets out a process for petitioning
the agency to authorize health claims about substance-disease
relationships, and sets out the types of information that any such
petition must include. Each of these regulations became effective on
May 8, 1993.
When implementing the 1990 amendments, we also conducted a review
of evidence for a relationship between dietary fiber and cardiovascular
disease (CVD). Based on this review, we concluded that the available
scientific evidence did not justify authorization of a health claim
relating dietary fiber to reduced risk of CVD (58 FR 2552, January 6,
1993). However, we did conclude there was significant scientific
agreement that the totality of publicly available scientific evidence
supported an association between types of foods that are low in
saturated fat and cholesterol and that naturally are good sources of
soluble dietary fiber (i.e., fruits, vegetables, and grain products)
and reduced risk of CHD\1\. We therefore authorized a health claim
about the relationship between diets low in saturated fat and
cholesterol and high in vegetables, fruit, and grain products that
contain soluble fiber and a reduced risk of CHD (21 CFR 101.77; 58 FR
2552 at 2572). In the preamble to the 1993 dietary fiber and CVD final
rule, FDA commented that if a manufacturer could document with
appropriate evidence that consumption of the type of soluble fiber in a
particular food has the effect of lowering blood low density
lipoprotein (LDL) cholesterol, and has no adverse effects on other
heart disease risk factors (e.g., high density lipoprotein (HDL)
cholesterol), it should petition for authorization of a health claim
specific for that particular dietary fiber-containing food (58 FR 2552
at 2567).
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\1\ CVD means diseases of the heart and circulatory system.
Coronary heart disease, one form of cardiovascular disease, refers
to diseases of the heart muscle and supporting blood vessels.
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B. Soluble Fiber From Certain Foods and Coronary Heart Disease Health
Claim (Sec. 101.81 (21 CFR 101.81))
In 1995, FDA received a petition for a health claim on the
relationship between oat bran and rolled oats and reduced risk of CHD.
FDA concluded there was significant scientific agreement that the
totality of publicly available scientific evidence supported the
relationship between consumption of whole oat products and reduced risk
of CHD. FDA further concluded that the type of soluble fiber found in
whole oats, i.e., beta-glucan soluble fiber, is the component primarily
responsible for the hypocholesterolemic effects associated with
consumption of whole oat foods as part of a diet that is low in
saturated fat
[[Page 76151]]
and cholesterol (62 FR 3584 at 3597-3598, January 23, 1997). As such,
the final rule authorized a health claim relating the consumption of
beta-glucan soluble fiber in whole oat foods, as part of a diet low in
saturated fat and cholesterol, and reduced risk of CHD (the oat beta-
glucan health claim). The source of beta-glucan soluble fiber in foods
bearing this health claim had to be one of three eligible whole oat
products; i.e., oat bran, rolled oats, or whole oat flour (see Sec.
101.81(c)(2)(ii)(A)). In 2002, FDA amended this health claim regulation
to add oatrim as a fourth eligible source of beta-glucan soluble fiber
(67 FR 61733, October 2, 2002). Oatrim is the soluble fraction of
alpha-amylase hydrolyzed oat bran or whole oat flour.
In the 1997 oat beta-glucan health claim final rule, we anticipated
the likelihood that other sources and types of soluble fibers will also
affect blood lipid levels, and thus, may reduce heart disease risk (62
FR 3584 at 3587). At that time, FDA considered structuring the final
rule as an umbrella regulation authorizing the use of a claim for
``soluble fiber from certain foods'' and risk of CHD. Such action would
have allowed flexibility in expanding the claim to other specific food
sources of soluble fiber when consumption of those foods has been
demonstrated to help reduce the risk of heart disease. However, the
agency concluded that it was premature to do so inasmuch as FDA had not
reviewed the totality of publicly available evidence on other, non-
whole oat sources of soluble fiber (62 FR 3584 at 3588). In 1998, in
response to a health claim petition, FDA concluded that soluble fiber
of psyllium seed husk, similar to beta-glucan soluble fiber from whole
oats, may reduce the risk of CHD by lowering blood cholesterol levels
(63 FR 8103, February 18, 1998). In that final rule, FDA broadened
Sec. 101.81 to include soluble fiber from psyllium seed husk, and also
modified the heading in Sec. 101.81 from, ``* * * Soluble fiber from
whole oats and risk of coronary heart disease'' to ``* * *Soluble fiber
from certain foods and risk of coronary heart disease (CHD).''
II. Petition and Grounds
A. The Petition
The National Barley Foods Council (petitioner), submitted a health
claim petition to FDA on August 3, 2004, under section 403(r)(4) of the
act (21 U.S.C. 343(r)(4)). The petition requested that the agency amend
the ``Soluble fiber from certain foods and coronary heart disease
health claim'' at Sec. 101.81 to include barley and barley products as
an additional source of beta-glucan soluble fiber eligible for the
health claim (Ref. 1). On November 10, 2004, we notified the petitioner
that we had completed our initial review of the petition and that the
petition had been filed for further action in accordance with section
403(r)(4) of the act. If the agency does not act, by either denying the
petition or issuing a proposed regulation to authorize the health
claim, within 90 days of the date of filing for further action, the
petition is deemed to be denied unless an extension is mutually agreed
upon by the agency and the petitioner (section 403(r)(4)(A)(i) of the
act and Sec. 101.70(j)(3)(iii)). On February 4, 2005, FDA and the
petitioner mutually agreed to extend the deadline to publish the
agency's decision on the petition until August 9, 2005. On August 3,
2005, FDA and the petitioner agreed to further extend the deadline to
December 31, 2005. The petitioner requested that FDA issue an interim
final rule by which labeling of barley-containing foods could bear the
health claim prior to publication of a final rule.
B. Nature of the Substance
The petitioner requests that Sec. 101.81 be amended to include
barley in addition to oats as a source of beta-glucan soluble fiber
associated with reducing the risk of CHD. The petitioner further
requests that whole grain barley (dehulled or hulless), and certain dry
milled barley products, i.e., pearl, flakes, grits, meal, flour, beta-
glucan enriched meal fractions, and bran, be determined as eligible
barley sources of beta-glucan soluble fiber.
The substance which is the subject of the existing oat beta-glucan
health claim is beta-glucan soluble fiber from oat sources listed in
Sec. 101.81(c)(2)(ii)(A). The requested amendment will expand the
substance of the claim to include both oat and barley sources of beta-
glucan soluble fiber. From an analytical perspective, beta-glucan
soluble fiber from barley is the same substance as beta-glucan soluble
fiber from oat sources. The method now specified in Sec.
101.81(c)(2)(ii)(A) for the measurement of beta-glucan soluble fiber
from oat sources, AOAC Official Method 992.28, is a method designated
by AOAC INTERNATIONAL to be used for both oat and barley fractions and
it is the same analytical method identified by the petition for
measurement of beta-glucan soluble fiber from barley sources.
The petition characterizes the barley sources of beta-glucan
soluble fiber as dehulled or hulless whole grain barley and barley
products produced from dehulled or hulless clean, sound barley grain by
standard dry milling processes, which may include steaming or
tempering, and that provide at least 4 percent (dry weight basis (dwb))
of beta-glucan soluble fiber and total dietary fiber content of at
least 8 percent (dwb) (flour, grits, flakes, and meal), or at least 5.5
percent (dwb) of beta-glucan soluble fiber and at least 15 percent
(dwb) total dietary fiber (bran and beta-glucan enriched barley
fractions). For whole grain (dehulled and hulless) barley, the petition
specified the minimum beta-glucan soluble fiber content as 4 percent
(dwb) and the minimum total dietary fiber content as 10 percent (dwb).
Most barley varieties have a tough fibrous adherent hull covering
the grain which must be removed for the grain to be edible. There are
also hulless barley varieties in which, similar to wheat, the hull
falls away during harvesting and the grain can be processed directly
into food products without dehulling. The petition thus has specified
the eligible sources of the barley beta-glucan soluble fiber to include
both dehulled and hulless whole barley grain.
In addition to dehulled or hulless whole barley grain, the petition
has specified that dry milled barley products that are eligible sources
of the beta-glucan soluble fiber be produced from dehulled or hulless
barley grain by standard dry milling processes. The petition includes
dry milled barley products only and does not include beta-glucan
extracts produced through ``wet milling'' processes. Wet milling
processes used to extract or concentrate the beta-glucan soluble fiber
component of barley are likely to alter physiochemical properties of
fiber and other components of the grain. All but two of the dry milled
barley products specified in the petition have been formally defined by
the American Association of Cereal Chemists (AACC) in a ``Barley
Glossary'' which is published in AACC Approved Methods (Ref. 2). Two
additional dry milled barley products, which are not defined in the
AACC Barley Glossary, i.e., barley meal and beta-glucan enriched barley
fractions, are included in the petition as beta-glucan soluble fiber
sources. The petition characterizes barley meal as differing from
barley flour only in that it is unsifted and thus has a higher portion
of bran and germ present than sifted barley flour. The petition has
defined ``beta-glucan enriched barley fractions'' as fractions of dry
milled barley that are enriched in endosperm cell walls by either
mechanical sifting or air classification and that provide at least 5.5
percent (dwb) of beta-glucan soluble fiber and a total dietary fiber
content of at least 15 percent (dwb). The
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beta-glucan content of barley endosperm cell walls is greater than that
of barley endosperm cell contents. During milling, endosperm cell walls
break up into larger particles than do endosperm cell contents. Sieving
or air classification milling steps can be used to separate milled
barley flour or meal by particle size to produce endosperm cell wall-
enriched fractions. Since barley endosperm cells walls have a greater
beta-glucan content than do barley endosperm cell contents, these
endosperm cell wall-enriched barley fractions have a greater beta-
glucan content than of the starting flour or meal. For simplicity, in
this document we will be referring to endosperm cell wall-enriched
barley fractions as ``sieved barley meal.''
The petition specifies that the dry milled barley products which
are the subject of this petition, with the exception of barley bran and
sieved barley meal, have a minimum beta-glucan soluble fiber content of
at least 4 percent (dwb), and a minimum total dietary fiber content of
at least 8 percent (dwb). The petition specifies that eligible barley
bran and sieved barley meal have a minimum beta glucan soluble fiber
and total dietary fiber content of 5.5 percent (dwb) and 15 percent
(dwb) respectively. The petition specifies that eligible whole grain
barley (dehulled and hulless) have a minimum beta glucan soluble fiber
and total dietary fiber content of 4 percent dwb and 10 percent dwb
respectively. The petitioner selected the minimum beta-glucan soluble
fiber and total dietary fiber content specifications for the whole
grain barley and dry milled barley products that are eligible sources
of beta-glucan soluble fiber to be inclusive of most all commercially
available dry milled barley products, while excluding barley products
such as barley brewers grain in which the soluble fiber has been
depleted.
C. Review of Preliminary Requirements for a Health Claim
1. The Substance Is Associated With a Disease for Which the U.S.
Population Is at Risk
CHD continues to be a disease that has a large impact on mortality
and morbidity in the general adult U.S. population. As explained in the
existing oat beta-glucan health claim (Sec. 101.81(b)), FDA recognizes
the CHD risk reduction benefit of certain foods that are sources of
soluble dietary fiber resulting from effects on lowering blood total
and LDL-cholesterol. Although age-adjusted CHD mortality rates in the
United States had been steadily decreasing since approximately 1960,
recent evidence has suggested that the decline in CHD mortality has
slowed (Ref. 3). Heart disease has been recognized as the leading cause
of death in the United States for at least the last 50 years (Ref. 3).
Based on these facts, FDA concludes that, as required in Sec.
101.14(b)(1), CHD is a disease for which the U.S. population is at
risk.
2. The Substance Is a Food
The substance which is the subject of the existing oat beta-glucan
health claim is beta-glucan soluble fiber from specified oat sources,
i.e., oat bran, rolled oats, whole oat flour, and oatrim (Sec.
101.81(c)(2)(ii)(A)). The petitioner requests an amendment to extend
the eligible sources of beta-glucan soluble fiber to include those from
whole grain barley and certain dry milled barley products. Barley grain
is a commonly consumed human food and beta-glucan soluble fiber is a
nutrient component of this food, thus the beta-glucan soluble fiber
from whole grain barley and dry milled barley products that include
bran, flakes, grits, pearl, flour, meal, and sieved barley meal is a
``substance'' as defined by Sec. 101.14(a)(2). Health claim general
requirements provide that where a substance is to be consumed at
``other than decreased dietary levels'' the substance must contribute
taste, aroma, nutritive value, or any other technical effect as listed
in 21 CFR 170.3(o), and must retain that attribute when consumed at
levels necessary to justify the claim (Sec. 101.14(b)(3)(i)). Whole
grain barley and dry milled barley products are consumed by humans for
their nutritive value, and retain that attribute when consumed at
levels necessary to justify the claim. Thus the agency concludes that
the requirement of Sec. 101.14(b)(3)(i) is satisfied.
3. The Substance Is Safe and Lawful
Section 101.14(b)(3)(ii) requires that the substance be a food or a
food ingredient or a component of a food ingredient whose use at the
levels necessary to justify a claim has been demonstrated by the
proponent of the claim, to FDA's satisfaction, to be safe and lawful
under the applicable food safety provisions of the act. The petition
states that dry milled barley grain is a human food of natural
biological origin that has been widely consumed in the United States
for its nutrient properties prior to January 1, 1958, without known
detrimental effects, which is subject only to conventional processing
as practiced prior to January 1, 1958, and for which no known safety
hazard exists. The petitioner's description of the use of dry milled
barley grain as a food ingredient and the use of whole grain barley, as
sources of barley beta-glucan soluble fiber, are consistent with FDA's
definition of food ingredients ordinarily regarded as ``generally
recognized as safe'' (GRAS) (21 CFR 170.30(d)). FDA is satisfied that
the petitioner has demonstrated the use of barley beta-glucan soluble
fiber, from whole grain barley and dry milled barley grain product
sources that are included in this rule, is safe and lawful under the
applicable food safety provision of the act.
III. Review of Scientific Evidence of the Substance-Disease
Relationship
A. Basis for Evaluating the Relationship Between Barley and CHD
FDA has identified the following endpoints to use in identifying
CHD risk reduction for purposes of a health claim evaluation: Coronary
events (myocardial infarction, ischemia), cardiovascular death,
atherosclerosis, high blood pressure, elevated serum total cholesterol,
and elevated serum LDL-cholesterol. FDA considers high blood pressure,
elevated serum total cholesterol, and elevated serum LDL-cholesterol
levels as surrogate endpoints for CHD (Ref. 4). FDA considers low HDL-
cholesterol levels a risk factor for CHD (National Institutes of Health
Consensus Conference, 1993). Elevated levels of serum total and LDL
cholesterol, a prerequisite for atherosclerotic disease, is a major
cause of CHD (Ref. 4). To evaluate the potential effects of beta-glucan
soluble fiber from whole grain barley and dry milled barley products on
CHD risk, FDA focused on serum total and LDL cholesterol levels to
evaluate the relationship between barley beta-glucan and CHD risk. This
focus is consistent with existing Sec. 101.81, in which FDA concluded
that there was significant scientific agreement that the relationship
between consumption of whole grain oats and CHD risk is mediated
primarily by the effect of dietary beta-glucan soluble fiber on serum
lipids.
FDA previously concluded that there is significant scientific
agreement regarding the relationship between consumption of soluble
fiber-containing whole oat foods and reduced risk of CHD (62 FR 3584 at
3598). FDA concluded that the type of soluble fiber found in whole oat
foods, i.e., beta-glucan soluble fiber, is primarily responsible for
the observed association between consumption of whole oat foods and the
lowering of blood cholesterol. As such, to evaluate the evidence
supporting the petitioned
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request to extend the beta-glucan soluble fiber from whole oat health
claim to include beta-glucan soluble fiber from whole grain barley and
dry milled barley products, FDA focused on evidence from human clinical
studies of the effects of consuming beta-glucan soluble fiber from
whole grain barley and dry milled barley products on blood lipids.
B. Review of Scientific Evidence of the Substance-Disease Relationship
A health claim characterizes the relationship between a substance
and a disease or health-related condition (21 CFR 101.14(a)(1)). The
substance must be associated with a disease or health-related condition
for which the general U.S. population, or an identified U.S. population
subgroup, is at risk (Sec. 101.14(b)(1)). Health claims characterize
the relationship between the substance and a reduction in risk of
contracting a particular disease.\2\
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\2\ See Whitaker v. Thompson, 353 F.3d 947, 950-51 (D.C. Cir.)
(upholding FDA's interpretation of what constitutes a health claim),
cert. denied, 125 S.Ct. 310 (2004).
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FDA's review of the evidence to support the petitioned amendment of
the oat beta-glucan health claim was conducted consistent with FDA
published guidance on significant scientific agreement in the review of
health claims (Ref. 5) and focused on evidence from intervention
studies.
1. Assessment of Intervention Studies
This petition identified reports of 11 human clinical studies with
data on barley consumption and serum lipids (Refs. 6 to 16). We
excluded six of these reports from our review because no scientific
conclusions relative to effects of barley beta-glucan soluble fiber on
CHD risk could be drawn from them. One of these excluded reports (Ref.
6) was available only as an abstract and therefore did not provide
sufficient information about the study for FDA to determine critical
elements, such as the study population characteristics and the
composition of the products used. In addition, the lack of a detailed
study description prevents FDA from determining whether the study is
flawed in critical elements such as design, conduct, and data analysis.
FDA must be able to review the critical elements of a study to
determine whether any scientific conclusions relevant to the health
claim can be drawn from it. These problems are not limited to
abstracts, but include other similar publications, such as meta-
analyses\3\ and review articles,\4\ book chapters, letters to the
editor, and committee reports.
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\3\ A meta-analysis is the process of systematically combining
and evaluating the results of clinical trials that have been
completed or terminated.
\4\ Review articles summarize the findings of individual
studies.
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A second excluded report, Lupton et al., 1994 (Ref. 7), tested
potential cholesterol-lowering effects of spent brewer's grain barley
and of barley oil, neither of which contains beta-glucan soluble fiber.
Because this report did not provide information about the substance
that is the subject of the health claim, it was excluded from further
review. Another excluded report, Keogh et al., 2003 (Ref. 8), tested
potential cholesterol-lowering effects of a beta-glucan concentrate
product extracted from barley bran. The whole grain barley and dry
milled barley products which are the sources of beta-glucan soluble
fiber in the petition do not include wet milled barley products such as
the beta-glucan concentrate used in Keogh et al., 2003. Beta-glucan
extraction processes (e.g., hot water or alcohol washes, and extreme pH
conditions), unlike dry milling processes, are likely to alter
physiochemical properties of soluble fiber and other components of
grain and will alter the relative proportions of beta-glucan soluble
fiber and other components of the grain. The composition of wet milled
barley beta-glucan products may be substantially different from that of
dry milled barley products and thus the results of Keogh et al., 2003
do not assist our evaluation of evidence supporting a health claim for
dry milled barley products. The three other excluded reports (Refs. 9,
10, and 11) did not contain enough information to estimate the barley
beta-glucan soluble fiber in the test diets. Without knowing the amount
of barley beta-glucan soluble fiber added to these studies' diets, FDA
was unable to draw any conclusions as to the effect of barley beta-
glucan soluble fiber on CHD risk from this evidence. The remaining 5 of
the 11 reports of human clinical studies (Refs. 12 to 16) were of a
sufficient quality for us to consider in our review of the evidence
supporting the relationship between reduced risk of CHD and consumption
of beta-glucan soluble fiber from whole grain barley and dry milled
barley products included as sources of beta-glucan soluble fiber in
this petition.
The study reported in Behall et al., 2004a (Ref. 12) investigated
the effects of dry milled barley products (barley flour, barley flakes,
and pearled barley) incorporated into a controlled whole-grain diet on
blood lipids of mildly hypercholesterolemic men. The study included 18
mildly hypercholesterolemic adult males (mean age 46 years; mean
baseline total cholesterol 238 milligrams/deciliter (mg/dL); mean
baseline LDL-cholesterol 155 mg/dL). The test diet was a Step I diet
(total fat 31 percent of energy, saturated fat 7.6 percent of energy,
total dietary fiber 27 grams (g)/day) that included whole grain test
foods (pancakes, spice cake, no-bake cookies, hot cereal, toasted
flakes, steamed pilaf, and muffins). The test personnel prepared three
versions of the whole grain test diet differing in levels of dry milled
barley products. One version of the test diet, made with whole wheat
flour, wheat flakes, and brown rice, but no barley, contained only
trace amounts of beta-glucan soluble fiber. Another version of the test
diet made with barley flour, barley flakes, and pearled barley
replacing the wheat and rice in test foods, provided 6 g barley soluble
fiber per day. The third version of the test diet was made with half
whole wheat/brown rice and half barley to provide 3 g barley soluble
fiber per day. The three whole grain test diets were designed to
provide approximately the same amount of total dietary fiber per day,
and vary only in the amount of barley beta-glucan soluble fiber.
Following a 2-week run-in period consuming the test diet without barley
to allow subjects to adjust to the dietary fiber level, the study
administered each the three test diets (0, 3, or 6 g per day barley
soluble fiber) to each participant in random order over three
consecutive 5-week periods. In comparison to the 0 g per day barley
soluble fiber diet period, there was a statistically significant (p <
0.05) 7.5 percent reduction of serum total cholesterol following the 6
g per day barley soluble fiber diet. Similarly, there was a
statistically significant 8.5 percent reduction in serum LDL-
cholesterol level following the 6 g per day barley soluble fiber period
compared to the 0 g per day period. Reductions in serum total and LDL-
cholesterol following the 3 g per day soluble barley fiber period were
not statistically significant. Serum HDL cholesterol levels were not
significantly different among the three diet periods.
Another study by Behall et al., (Ref. 13) investigated the effects
of dry milled barley products (barley flour, barley flakes, and pearled
barley) in a controlled whole-grain diet on blood lipids of mildly
hypercholesterolemic adults. The study included 25 mildly
hypercholesterolemic adult men and women (average baseline total
cholesterol 223 mg/dL; average baseline LDL-cholesterol 145 mg/dL). The
test
[[Page 76154]]
diet was the same as in the previous Behall et al. study (Ref. 12),
i.e., a STEP I diet including whole grain test foods and with barley
ingredients substituted for whole wheat/brown rice ingredients to
produce three versions of test diet providing 0 g, 3 g, or 6 g per day
of barley beta-glucan, but each with approximately the same amount of
total dietary fiber. As in the previous study, the 17-week experimental
period consisted of a 2-week run-in period followed by three
consecutive 5-week periods during which each participant was
administered each of the three versions of test diet in random order.
In comparison to the 0 g per day barley beta-glucan diet period, there
were statistically significant (p < 0.05) reductions of serum total
cholesterol following both the 3 g and 6 g per day barley beta-glucan
diets (5 percent and 6 percent reductions, respectively). Similarly,
there were statistically significant reductions of serum LDL-
cholesterol following both the 3 g and 6 g per day barley beta-glucan
diets compared to the 0 g per day diet (10 percent and 13 percent
reductions, respectively). Serum HDL cholesterol levels were not
different among the three diet periods.
The study reported in McIntosh et al., 1991 (Ref. 14) investigated
the effects of dry milled barley products (barley bran and barley
flakes), as compared to wheat, on blood lipids of mildly
hypercholesterolemic men. The study included 21 mildly
hypercholesterolemic adult males (mean age 43 years; mean baseline
total cholesterol 240 mg/dL; mean baseline LDL-cholesterol 177 mg/dL).
Throughout the study, participants consumed their customary diets but
replaced their customary grain-based foods with similar test foods
(bread, muesli, pasta, and biscuits) provided by study personnel. The
test foods were made with either whole wheat flour, or with barley bran
and barley flakes replacing portions of the whole wheat flour. The
grain-based test foods provided about 50 percent of total caloric
intake and about 65 percent of total dietary fiber intake. The whole
wheat test foods and the barley test foods were equivalent in content
of energy, total fat, saturated fat, total dietary fiber, and soluble
dietary fiber content. The diet with whole wheat test foods provided
1.5 g beta-glucan per day, whereas the diet with barley test foods
provided 8 g beta-glucan per day. Following a 3-week run-in period with
the usual diets, the participants consumed the diets supplemented with
either whole wheat test foods or barley test foods in random order
during two consecutive 4-week periods. In comparison to the whole wheat
test food period, there were statistically significant (p < 0.05)
reductions of serum total cholesterol (6 percent reduction) and of
serum LDL-cholesterol (7 percent reduction) following the barley test
food period. Serum HDL cholesterol levels were not different between
the two diet periods.
The study reported in Newman et al., 1989 (Ref. 15) investigated
the effects of dry milled barley (barley flour), in comparison to
wheat, on blood lipids of adult men. The study included 14 adult males
(age greater than 35 years; total cholesterol range 140-247 mg/dL; LDL-
cholesterol range 71-187 mg/dL). During the study, the participants
consumed their customary diets but with three servings per day of test
foods (muffins, applesauce bars, breads, muffins, cookies, and cereal)
made with either whole wheat flour and wheat bran or with barley flour
replacing similar foods of the customary diet. Both the wheat and
barley grain-based test foods provided about 42 g total dietary fiber
per day. The barley test foods provided approximately 3 g soluble beta-
glucan per day. The 4-week study was a randomized, blinded study with
one half of the participants consuming the wheat flour/bran test foods
for 4 weeks, and the other half receiving the barley test foods for 4
weeks. At the end of the test period, mean serum total and LDL-
cholesterol levels were significantly (p < 0.05) lower in the barley
group than in the wheat group.
The study reported in Li et al., 2003 (Ref. 16) investigated the
effects of whole grain barley on blood lipids of young healthy female
Japanese. The study included 10 healthy Japanese medical students
(average age 20 years; average baseline total cholesterol 140 mg/dL;
average baseline LDL-cholesterol 53 mg/dL). During the study,
participants consumed a typical Japanese diet (approximately 2,000
kcal/day, 35 percent fat) that the investigators provided. During the
barley diet period, barley replaced 30 percent of the daily rice
intake. The barley provided approximately 5 g per day of soluble
dietary fiber. Each participant consumed the control diet (rice only)
and barley diet (70 percent rice, 30 percent barley) in random order
during two 4-week periods separated by a 4-week interval. In comparison
to the control diet period, there were statistically significant (p <
0.05) reductions of blood total cholesterol (14.5 percent reduction)
and of blood LDL-cholesterol (21 percent reduction) following the
barley diet period. Blood HDL cholesterol levels were not different
between the two diet periods.
In summary, the five clinical trials included in our review which
tested the impact of consuming whole grain barley and dry milled barley
products (bran, flakes, flour and pearled barley) on serum lipids
(Refs. 12 through 16), consistently reported statistically significant
lower serum total and LDL-cholesterol levels following 4 to 5 weeks of
consuming diets in which whole grain barley or dry milled barley
product ingredients replaced wheat and rice ingredients. Serum HDL
cholesterol levels were not affected by consuming the barley foods. The
lowest daily dietary intake of barley beta-glucan fiber effective in
significantly lowering serum total and LDL-cholesterol reported in
these studies was 3 g per day.
2. Eligible Barley Sources of Beta-Glucan Soluble Fiber
The oat beta-glucan health claim, at Sec. 101.81(c)(2)(ii)(A),
lists four eligible oat sources of beta-glucan soluble fiber; i.e., oat
bran, rolled oats, whole oat flour, and oatrim. FDA is amending Sec.
101.81(c)(2)(ii)(A) to add dehulled and hulless whole grain barley and
certain dry milled barley products to this list of eligible sources of
beta-glucan soluble fiber.
Below, the agency describes the eligible sources of barley beta-
glucan soluble fiber from dry milled barley products and the
specifications for all eligible sources.
The five clinical trials with barley cited previously used the
following barley sources in their test foods: Whole grain barley,
barley bran, barley flour, barley flakes, and pearled barley. Each dry
milled product used in the clinical studies is processed only to the
extent that milling has altered the particle size of the intact grain,
and in some cases the product is also subjected to a particle size
separation process (e.g., sifting). The barley sources of beta-glucan
soluble fiber in this rule, i.e., dehulled or hulless whole grain
barley, barley bran, flakes, grits, pearl, flour, meal, and sieved
barley meal, are produced from dry milling processes only. Wet milling,
as opposed to dry milling, involves slurrying the grain under pH,
temperature, chemical, or enzyme conditions that cause changes other
than just particle size. The one barley clinical trial that was
excluded from our review because the product tested was a wet milled
barley beta-glucan extract (Ref. 8) reported finding no effect of the
barley beta-glucan extract on serum lipids.
There are many variations in dry milling processes for barley, most
of the
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resulting dry milled barley products are defined in the AACC ``Barley
Glossary'' (Ref. 2), including barley bran, flakes, grits, pearl, and
flour. The petition describes two additional dry milled barley
products: Barley meal and sieved barley meal. Barley meal is unsifted,
ground, whole grain barley. The petition described sieved barley meal
as endosperm cell wall-enriched fractions of barley meal or barley
flour resulting from including a particle size separation step (either
sieving or air classification) in the dry milling process. Although the
petitioner's term for this barley product was ``beta-glucan enriched
barley fractions,'' we are using the term ``sieved barley meal'' in
this rulemaking as that is descriptive of the how this dry milled
barley product is produced and to clarify that a barley ``beta-glucan
enriched'' product produced by any other process is not included as an
eligible source of barley beta-glucan soluble fiber.
The petition requests that the eligible barley sources of beta-
glucan soluble fiber added to Sec. 101.81 include, in addition to the
whole grain barley and dry milled barley products used in the clinical
studies FDA included in its review (i.e., barley bran, flakes, flour,
and pearl barley), three dry milled barley products that were not used
in the reviewed clinical studies (i.e., barley grits, meal, and sieved
barley meal). FDA agrees with the petitioner that the additional barley
products represent variations of the extent of dry milling and as such
involve more textural difference and not compositional differences that
would result in an outcome that is different from that in clinical
trials. FDA is amending Sec. 101.81(c)(2)(ii)(A) to add as eligible
barley sources of beta-glucan soluble fiber, whole grain barley, barley
bran, barley flakes, barley grits, barley flour, barley meal, sieved
barley meal, and pearl barley. The petition has specified the minimum
beta-glucan soluble fiber content of eligible dry milled barley
products, with the exception of sieved barley meal and barley bran, to
be at least 4 percent (dwb), and the minimum total dietary fiber
content to be at least 8 percent (dwb). The minimum beta-glucan soluble
fiber and total fiber content specified in the petition for eligible
barley bran and sieved barley meal is at least 5.5 percent (dwb) and 15
percent (dwb), respectively. The minimum beta-glucan soluble fiber and
total fiber content specified in the petition for eligible whole grain
barley is at least 4 percent (dwb) and 10 percent (dwb), respectively.
The petition states that these dietary fiber content specifications
were selected based on typical analyses of commercially available dry
milled barley products in the United States. FDA is adopting the
dietary fiber content specifications recommended by the petitioner that
must be met in order for the listed sources of beta-glucan soluble
fiber to be considered eligible sources.
IV. Decision to Amend the Health Claim
Evidence from five clinical trials (Refs. 12 through 16)
consistently demonstrate that consuming whole grain barley and dry
milled barley products, such as barley bran, flakes, flour and pearled
barley that provide at least 3 g beta-glucan fiber per day, is
effective in lowering serum total and LDL-cholesterol levels, which in
turn may reduce the risk of CHD. The cholesterol-lowering effects of
beta-glucan soluble fiber in dry milled barley products is comparable
to that of the oat sources of beta-glucan now listed in Sec.
101.81(c)(2)(ii)(A). When issuing the oat beta-glucan health claim the
agency concluded that the beta-glucan soluble fiber component of oat
products plays a significant role in the relationship between whole
grain oats and the risk of CHD based, in part, on evidence that there
is a dose response between the level of beta-glucan soluble fiber from
whole oats and the level of reduction in serum LDL cholesterol, and
evidence that intakes at or above 3 g per day were more effective in
lowering serum lipids than lower intake levels (62 FR 3584 at 3585).
The petition notes that a comparison of the serum cholesterol lowering
evidence for barley beta-glucan soluble fiber, which has been submitted
with the petition, and the oat beta-glucan soluble fiber/cholesterol-
lowering dose-response evidence, which was cited in the oat beta-glucan
health claim rulemaking, shows that the cholesterol lowering efficacy
of the oat and the barley sources of beta-glucan soluble fiber are very
similar. FDA agrees that the effect, on serum cholesterol, of consuming
whole grain oat and dry milled barley sources of beta-glucan soluble
fiber appears equivalent. FDA also agrees that the scientific evidence
supports a minimum daily effective intake of beta-glucan soluble fiber
from dry milled barley products the same as that which was previously
found for beta-glucan soluble fiber from whole oat sources, i.e., 3 g
per day. Therefore, FDA is amending Sec. 101.81(c)(2)(i)(G)(1) to
include 3 g or more per day of barley sources of beta-glucan soluble
fiber, alone or in combination with whole oat sources of such fiber.
Barley beta-glucan can be measured by the same quantitative
analytical method as is currently specified in Sec. 101.81 for the
determination of oat beta-glucan. Based on the totality of the publicly
available scientific evidence, FDA concludes there is significant
scientific agreement, among experts qualified by scientific training
and experience, for a claim about the relationship between certain
beta-glucan soluble fiber sources and reduced risk of CHD. Thus, we are
amending Sec. 101.81(c)(2)(ii)(A) to include dehulled or hulless whole
grain barley and certain dry milled barley products as additional
sources of beta-glucan soluble fiber. We also find that the serum
cholesterol-lowering efficacy of barley beta-glucan soluble fiber and
of oat beta-glucan are comparable and, like oat beta-glucan, 3 g per
day of barley beta-glucan is a sufficient daily dietary intake to
achieve a reduction in serum total and LDL cholesterol.
The barley products that are to be included in this amendment as
eligible sources of beta-glucan soluble fiber include dehulled and
hulless whole grain barley, and certain dry milled barley products
including barley bran, barley flakes, barley flour, barley grits, and
pearl barley as they are defined in the AACC Barley Glossary (Ref. 2),
barley meal which is an unsifted ground barley grain, and sieved barley
meal which is an endosperm cell-wall enriched fraction resulting from
sieving or air classification of barley flour or barley meal to
separate fractions based on particle size. The sieved barley meal
fraction retains the coarser particles that originate from endosperm
cell wall. Minimum dietary fiber content specifications for these
barley products, recommended in the petition as representative of
commercially available barley products in the United States are a
minimum of 4 percent beta-glucan soluble fiber and 10 percent total
dietary fiber for dehulled and hulless whole grain barley; a minimum of
5.5 percent beta-glucan soluble fiber and 15 percent total dietary
fiber for barley bran and sieved barley meal; and a minimum of 4
percent beta-glucan soluble fiber and 8 percent total dietary fiber for
all other dry milled barley products. All dietary fiber values are on a
dwb.
The oat beta-glucan health claim requires that a food bearing the
claim on its label include one of the whole grain ingredients listed
within Sec. 101.81(c)(2)(ii)(A), and that the whole oat ingredient
provide at least 0.75 gram of beta-glucan soluble fiber per reference
amount customarily consumed of the food product (Sec.
101.81(c)(2)(iii)(A)). FDA arrived at
[[Page 76156]]
this value based on a standard assumption that the daily dietary intake
is divided over four eating occasions (three meals and a snack). FDA
concluded that in adding whole oat flour to the eligible whole oat
sources of beta-glucan soluble fiber that were included in the final
rule there would be sufficient numbers and types of whole oat-
containing food products available to increase the likelihood that
whole oat food products will be consumed at four eating occasions per
day (62 FR 3584 at 3592). Adding whole grain barley and dry milled
barley products as additional eligible sources of beta-glucan soluble
fiber will further increase the type and number of qualifying food
products and make it easier for consumers to select whole grain barley,
dry milled barley or whole oat containing food products at four eating
occasions per day. Thus, FDA is retaining under the ``Nature of the
food eligible to bear the claim'' section of this regulation the
criterion that foods eligible to bear the claim contain at least 0.75
gram of soluble fiber (Sec. 101.81(c)(2)(iii)(A)(1)).
FDA authorized use of the oat beta-glucan health claim in 1997, in
part, on the basis of clinical evidence demonstrating that consumption
of whole oat foods such as oat bran, oatmeal, and whole oat flour
lowers serum cholesterol. FDA also considered scientific evidence for a
dose-response between the amount of beta-glucan consumed and the
cholesterol-lowering effect (Ref. 17), and evidence that at least 3
grams of soluble fiber consumed per day in whole oat foods is
sufficient for effective cholesterol lowering (Ref. 18). Information
provided in the oat beta-glucan health claim petition indicated that
the soluble fiber content of whole oats is predominantly beta-glucan.
Therefore, FDA concluded that the total soluble fiber content of whole
oats significantly reflects the beta-glucan present in whole oats (62
FR 3584 at 3588).
Although FDA had concluded that oat beta-glucan soluble fiber plays
a significant role in the relationship between whole grain oats and
reduced risk of CHD (62 FR 3584 at 3585), FDA had considered the term
``beta-glucan'' a technical term that presumably would not be widely
understood, and that the term ``soluble fiber'' is more familiar to
consumers because soluble fiber can be used on the nutrition label
under 21 CFR 101.9(c)(6)(i)(A). As such, this health claim statement
must identify the substance using the term ``soluble fiber'' (62 FR
3584 at 3588).
The standard method for measurement of beta-glucan in oat and
barley (AOAC Official Method 992.28) measures total beta-glucan content
of the grain product without differentiating soluble and insoluble
fractions. There is no standard method, nor a single definition for,
soluble beta-glucan. Typically a grain product is analyzed for either
soluble fiber or for total beta-glucan. Information in the original oat
beta-glucan health claim petition convinced FDA that the total soluble
fiber content of whole oats significantly reflects the beta-glucan
content (62 FR 3584 at 3588). Information and data provided in the
current petition demonstrate that the solubility of beta-glucan in oats
and barley are similar and that the test for total beta-glucan is an
adequate marker for the cholesterol-lowering functionality of whole
oat, whole grain barley, and dry milled barley in foods. Therefore, FDA
is requiring that the barley beta-glucan health claim identify the
substance with the term ``soluble fiber,'' although the substance is to
be measured as total beta-glucan.
There is strong and consistent scientific evidence that diets high
in saturated fat and cholesterol are associated with elevated serum
total and LDL cholesterol, and that elevated serum cholesterol levels
are a major modifiable risk factor for CHD. Expert groups recommend
lowering dietary saturated fat and cholesterol as a primary lifestyle
change for reducing heart disease risk (Ref. 4). Comments to the 1997
oat beta-glucan health claim final rule expressed concern that a CHD
risk claim that does not include a reference to a low saturated fat,
low cholesterol diet may mislead consumers into thinking that the
single food, e.g., oat products, would appear to be a ``magic bullet''
(62 FR 3584 at 3594). Further, based on the scientific evidence, the
role of soluble fiber from whole oats in the diet is generally
recognized as being of smaller magnitude in reducing CHD risk compared
to consumption of a low saturated fat, low cholesterol diet. When
authorizing the oat beta-glucan health claim FDA concluded that
although selection of foods with soluble fiber from whole oats is a
useful adjunct to selection of diets low in saturated fat and
cholesterol in reducing CHD risk, it would not be in the best interest
of public health nor consistent with the scientific evidence to imply
that selecting diets with soluble fiber from whole oats is a substitute
for consuming diets low in saturated fat and cholesterol (id.).
Therefore, FDA required that the oat beta-glucan health claim statement
include the phrase ``diets that are low in saturated fat and
cholesterol and that include soluble fiber from * * *'' (Sec.
101.81(c)(2)(i)(A)).
Barley beta-glucan soluble fiber functions comparably to oat beta-
glucan soluble fiber in its effect on reducing LDL and total
cholesterol. Barley beta-glucan soluble fiber sources are a useful
adjunct to selection of diets low in saturated fat and cholesterol to
reduce CHD risk. Thus, the agency is requiring the barley beta-glucan
health claim to include the information that selection of barley foods
containing beta-glucan soluble fiber should ``be part of a diet low in
saturated fat and cholesterol,'' consistent with Sec.
101.81(c)(2)(i)(A). Including a reference to a low saturated fat, low
cholesterol diet in the health claim will enable the public to
understand the relative significance of the information in the context
of a total daily diet (21 U.S.C. 343(r)(3)(A)(iii)).
V. Description of Modifications to Sec. 101.81
A. Requirements of the Health Claim
Specific requirements of the ``nature of the claim'' paragraph in
Sec. 101.81(c)(2)(i) of the soluble fiber from certain foods and risk
of CHD health claim include, in part, that the claim specify the daily
dietary intake of the soluble fiber source associated with coronary
heart disease risk reduction. FDA is amending Sec.
101.81(c)(2)(i)(G)(1) to indicate that the source of the 3 g or more
per day of beta-glucan soluble fiber may be from whole oats or barley
or a combination of oats and barley. FDA is amending Sec.
101.81(c)(2)(ii)(A) to add barley sources of beta-glucan soluble fiber
in addition to whole oat sources. In addition, FDA is amending Sec.
101.81(c)(2)(ii)(A) by adding Sec. 101.81(c)(2)(ii)(A)(5) to list
dehulled and hulless whole grain barley and specific dry milled barley
products as eligible sources of beta-glucan soluble fiber. The specific
dry milled barley products include, barley bran, barley flakes, barley
grits, pearl barley, barley flour, barley meal, and sieved barley meal
produced from clean, sound dehulled or hulless barley grain using
standard dry milling techniques, which may include steaming or
tempering. Eligible dehulled and hulless whole grain barley has a beta-
glucan soluble fiber content of at least 4 percent (dwb) and a total
dietary fiber content of at least 10 percent (dwb). Eligible barley
flakes, barley grits, pearl barley, barley flour, and barley meal have
a beta-glucan soluble fiber content of at least 4 percent (dwb) and
total dietary fiber content of at least 8 percent (dwb). Eligible
barley bran and sieved barley
[[Page 76157]]
meal have a beta-glucan soluble fiber content of at least 5.5 percent
(dwb) and total dietary fiber content of at least 15 percent (dwb). FDA
is incorporating by reference in new Sec. 101.81(c)(2)(ii)(A)(5) the
Barley Glossary (AACC Method 55-99), published in Approved Methods of
the American Association of Cereal Chemists, that contains definitions
for barley bran, barley flakes, barley flour, barley grits, pearl
barley, dehulled barley, and hulless barley. FDA is amending the
``nature of the food eligible to bear the claim'' paragraph at Sec.
101.81(c)(2)(iii)(A)(1) to indicate that the eligible sources of beta-
glucan fiber will include both whole oat and barley foods.
B. Optional Information
FDA is amending the ``optional information'' paragraph of this
section (at Sec. 101.81(d)(5)) to indicate that the eligible sources
of beta-glucan fiber will include both whole oat and barley foods.
VII. Issuance of an Interim Final Rule and Immediate Effective Date
We are issuing this rule as an interim final rule, effective
immediately, with an opportunity for public comment. Section 403(r)(7)
of the act authorizes us to make proposed regulations issued under
section 403(r) of the act effective upon publication pending
consideration of public comment and publication of a final regulation,
if the agency determines that such action is necessary for public
health reasons. This authority enables us to act promptly on petitions
that provide for information that will help: (1) Enable consumers to
develop and maintain healthy dietary practices, (2) enable consumers to
be informed promptly and effectively of important new knowledge
regarding nutritional and health benefits of food, or (3) ensure that
scientifically sound nutritional and health information is provided to
consumers as soon as possible. Proposed regulations made effective upon
publication under this authority are deemed to be final agency action
for purposes of judicial review. The legislative history indicates that
such regulations should be issued as interim final rules (H. Conf.
Rept. No. 105-399, at 98 (1997)).
We are satisfied that each of the three criteria in section
403(r)(7)(A) of the act have been met in the petition submitted by the
National Barley Foods Council. This health claim will enable consumers
to develop and maintain healthy dietary practices, such as increasing
consumption of foods containing types of soluble dietary fiber shown to
help reduce CHD risk. The health claim also will provide consumers with
important new knowledge regarding the effects of consuming whole grain
barley and dry milled barley products on blood cholesterol, and will
provide consumers with scientifically sound information about an
additional dietary choice which may help reduce the risk of CHD.
Therefore, we are using the authority given to us in section
403(r)(7)(A) of the act to issue an interim final rule authorizing a
health claim relating consumption of barley beta-glucan soluble fiber
and CHD risk, effectively immediately.
FDA invites public comment on this interim final rule. The agency
will consider modifications to this interim final rule based on
comments made during the comment period. Interested persons may submit
to Division of Dockets Management (see ADDRESSES) written or electronic
comments regarding this interim final rule. This regulation is
effective upon publication in the Federal Register. The agency will
address comments and confirm or amend the interim final rule in a final
rule.
VIII. Analysis of Impacts
FDA has examined the impacts of the interim final rule under
Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-
612), and the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).
A. Regulatory Impact Analysis
Executive Order 12866 directs agencies to assess all costs and
benefits of available regulatory alternatives and, when regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety,
and other advantages; distributive impacts; and equity). Executive
Order 12866 classifies a rule as significant if it meets any one of a
number of specified conditions, including having an annual effect on
the economy in a material way, adversely affecting competition, or
adversely affecting jobs. A regulation is also considered a significant
regulatory action if it raises novel legal or policy issues. FDA has
determined that this interim final rule is not a significant regulatory
action as defined by Executive Order 12866.
1. Need for Regulation
Current labeling regulations do not permit foods containing
threshold amounts of beta-glucan soluble fiber from the whole grain
barley or dry milled barley to claim health benefits that link their
intake with a reduction in the risk of CHD. Such claims are authorized
for foods containing threshold amounts of beta-glucan soluble fiber-
containing whole oat foods, and scientific evidence links consumption
of foods with the same amount of beta-glucan soluble fiber from barley
with the same health benefits. Allowing foods containing beta-glucan
soluble fiber from barley to claim the same health benefits as those
containing beta-glucan soluble fiber from whole oats will improve diet-
related information available on food labels. Making this information
available to consumers may facilitate disease risk-reducing dietary
choices.
2. Regulatory Options
The regulatory options include: (1) No regulatory action and (2)
the interim final rule.
3. Benefits and Costs From No Regulatory Action
The absence of any regulatory action is considered the baseline
option for comparison with the regulatory option. There would be no
compliance costs and no benefits in the absence of regulatory action.
4. Benefits and Costs From the Interim Final Rule
a. Benefits from the interim final rule--The benefit from the
interim final rule is the reduced CHD risk that may result from
consumers' substituting barley foods containing beta-glucan soluble
fiber for currently consumed, less healthful alternatives. Heart
disease is the leading cause of death and permanent disability in the
United States (Ref. 19). The National Center for Health Statistics in
the Centers for Disease Control and Prevention (CDC) reports that in
2002 there were approximately 23 million non-institutionalized adults
diagnosed with heart disease, resulting in approximately 700,000
deaths. According to the same source, heart disease patients made
approximately 20.8 million office-based physician visits and
approximately 1.1 million hospital outpatient visits in that year. In
addition, there were approximately 4.4 million hospital discharges of
heart disease patients, with average lengths of stay of approximately
4.4 days. As an indication of the extent to which this disease is
disabling, the CDC reports that approximately 66 percent of heart
patients fail to fully recover (Ref. 20).
Overview of Benefits Analysis
This interim final rule may result in a reduction in the risk of
heart disease by enabling at-risk consumers to make healthier food
choices. We first describe
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the theoretical framework for estimating the increase in the market
shares and healthful consumption as a result of this interim final
rule. We use results from FDA's 2001 Food Label and Packaging Survey
(FLAPS) to compute the total sales of products with health claims from
soluble fiber from whole oats to estimate a potential market share of
foods containing beta-glucan soluble fiber from barley (Ref. 21). We
describe the FLAPS data set, and use the estimated market share of
foods claiming health benefits from beta-glucan soluble fiber from
barley as the upper bound for the increase in healthful consumption
from this interim final rule. We account for existing consumption of
foods that are equally as healthful as the new foods containing beta-
glucan soluble fiber from barley to adjust the upper bound in order to
estimate the increase in healthful food consumption. We then suggest a
link between any estimated increase in healthful food consumption and a
reduction in the incidence of CHD. Finally, we suggest further
adjustments to any estimated reductions in health risks from more
healthful food consumption based on an assumed uneven distribution of
diet-related health risks across the population.
Theoretical Framework
We assume that prices, taste, and health attributes determine
consumer demand for food products within a food group, and that an
increase in the consumer demand for an item within a food group results
in an offsetting decrease in demand for other items within that group.
In addition, we assume that an increase in the consumption of healthful
products in the aggregate may result if there is a decrease in the
relative price of healthful products compared with products in general.
However, a decrease in the relative price of one healthful product may
also result in a decrease in the demand for other healthful products.
We assume that the total sales of products within a general product
group remain constant, so any increase in consumption of healthful
products as a result of this interim final rule would be offset by a
decrease in consumption of other products within the same product
group; these other products may be more, less, or equally healthful. To
the extent that aggregate consumption of products from an entire
product group increases, aggregate consumption of products from other
groups will decrease. In this analysis, however, we do not consider the
effects of changes in aggregate consumption of product groups that do
not contain products with health claims.
Using FLAPS to Estimate the Market Share of Foods Claiming Health
Benefits From Soluble Fiber From Whole Oats
We use results from FDA's 2001 FLAPS to estimate the increase in
market shares of foods containing beta-glucan soluble fiber from barley
(Ref. 21). The 2001 FLAPS survey contains label information on 1,281
products selected from 238 food types from 57 food groups. The
information includes detailed descriptions of the labels including any
health claims, structure-and-function claims, and nutrient content
claims. We combine the label information with total sales information
obtained from the Information Resources Incorporated (IRI) data used to
design the sampling methodology for the FLAPS survey to estimate that
products with health claims that link fiber from whole oats to reduced
risk from CHD account for approximately 0.6 percent of all product
sales. Moreover, products with these health claims are concentrated in
the hot and cold cereals product groups: 5.1 percent of sales of cold
cereals and 75.5 percent of sales of hot cereals claim these health
benefits.
We acknowledge the potential sampling bias in the FLAPS survey,
which selects brand name products with the largest sales within a
product group. This sampling method likely overestimates the prevalence
of health claims on labels (because large brand names may be more
likely to make claims than their smaller, less-known competitors).
However, FLAPS sampled these products because they represent an
overwhelming share of total sales within their product groups.
Consequently, the effect of the overestimation bias on the estimated
consumption (and resulting health benefits) of healthier products may
be small.
We characterize the uncertainty in the FLAPS estimates by assuming
that the true percentages of sales of cold and hot and cereal products
that currently make fiber from oats health claims are distributed
lognormally with means of 75.5 percent and 5.1 percent (i.e., the
estimates reported from the FLAPS data), both with variances of 10
percent relative to their means. The lognormal distribution is
appropriate to use since it incorporates the idea that the true market
shares of cold and hot cereal products that currently make health
claims about fiber from oats is not too different from the mean
estimate computed using FLAPS as would be implied by the use of a
normal distribution. The parameters that describe the lognormal
distribution are the natural logarithms of the mean and variance of a
normal distribution.
The Potential Market Shares of Foods Claiming Health Benefits From
Soluble Fiber From Barley
Manufacturers may formulate new products to use barley as a
principal ingredient if the ability to claim health benefits makes this
option profitable. In addition, we assume current products with
threshold amounts of beta-glucan soluble fiber from barley would be
able to make the health claim if they incur the cost of changing
labels. We do not know how many current products would use the health
claim, and we do not know how many new products would be formulated to
use the claim. We assume that the current market shares of products
that claim health benefits from soluble fiber from oats can be used to
estimate of the potential market share for products likely to claim
health benefits from soluble fiber from barley.
We first assume that the potential market share from newly
formulated cold cereals and hot cereals that claim health benefits from
soluble fiber from barley would result from sales that would have
otherwise been for less-healthful alternatives. We also assume that the
potential market shares of newly formulated hot cereals and cold
cereals claiming health benefits from soluble fiber from barley would
be no larger than those for hot cereals and cold cereals currently
claiming health benefits from soluble fiber from oats. Consequently, we
estimate that the potential market share of hot cereals that claim
health benefits from soluble fiber from barley would be 24.5 percent of
the market for all hot cereals, and that the potential market share of
cold cereals that claim benefits from soluble fiber from barley would
be 5.1 percent of the market for all cold cereals.
The Increase in Healthful Consumption
The increases in market shares of more healthful food products may
be less than that reflected in the potential market shares estimated
previously if consumers of newly formulated and labeled hot and cold
cereals claiming health benefits from soluble fiber from barley would
have otherwise selected hot and cold cereals currently claiming health
benefits from soluble fiber from oats. Increases in market shares of
healthful food products may also be less than those reflected by the
potential market shares estimated previously if consumers of newly
formulated and labeled hot and cold cereals claiming health benefits
from soluble fiber from barley would have otherwise selected existing
hot and cold cereals that contain the threshold level of beta-
[[Page 76159]]
glucan soluble fiber from barley but are currently not allowed to make
a health claim. We assume that half of the estimated potential market
shares of newly formulated and labeled hot and cold cereals claiming
health benefits from soluble fiber from barley would reflect purchases
by consumers who otherwise would have selected hot and cold cereals
currently claiming health benefits from soluble fiber from oats. We
further assume that half of the remaining sales of newly formulated and
labeled barley products would reflect purchases of existing products
that contain the threshold level of beta-glucan soluble fiber from
barley but are not currently allowed to make a health claim.
Consequently, we estimate that one-quarter (i.e., one-half times one-
half) of the potential market shares of newly formulated barley
products would reflect purchases by consumers who otherwise would have
selected less-healthful hot and cold cereal alternatives, or 1.3
percent of the cold cereal market (i.e., 0.25 times 5.1 percent), and
6.1 percent of the hot cereal market (i.e., 0.25 times 24.5 percent)
would reflect increases in healthful food purchases as a result of this
interim final rule.
To characterize the uncertainty in our methods, we assume that the
estimates of the percent increases in market shares of healthful hot
and cold cereal products due to this interim final rule are uniformly
distributed with minimums equal to one-half of the previously estimated
increases in healthful sales, and maximums of one and one-half times
the previously estimated increases in healthful sales. Consequently, we
estimate a range of between 0.5 to 2 percent with a mean of 1 percent
(rounded to the nearest half-percent) increase in market share of more
healthful cold cereal products, and between 3 and 9 percent with a mean
of 6 percent (rounded to the nearest half-percent) increase in the
market share of more healthful hot cereal products as a result of this
interim final rule. We assume that increases in market shares of more
healthful food products containing threshold levels of beta-glucan
soluble fiber from barley would reflect more healthful food consumption
which may decrease the risk of diet-related disease, including CHD.
The increase in healthful consumption by those consumers not at
risk for diet-related diseases, including CHD, may mitigate the health
benefits from the estimated increase in healthful consumption. As
suggested earlier, healthful characteristics are just one of several
considerations, including taste and price, consumers use when making
food purchases. Consumers who choose newly formulated barley products
over less healthful alternatives may include both those at risk of
these diseases as well as those who are not at risk. We assume that
those who are at risk of CHD will contribute to half of the increase in
the healthful consumption of hot and cold cereal products.
Consequently, we estimate an increase in healthful consumption of cold
cereals by consumers who are at risk for CHD to be between 0.25 and 1
percent, with a mean of 0.5 percent of that market, and an increase in
healthful consumption of hot cereals by consumers who are at risk for
CHD to be between 1.5 and 4.5 percent with a mean of 3 percent of that
market due to this interim final rule.
Finally, the incremental expansion of the health claim for foods
that contain psyllium seed husk and beta-glucan soluble fiber from oats
to include beta-glucan soluble fiber from barley raises the possibility
that soluble fiber from other grains may also result in the same health
benefits. In this analysis we have assumed that hot and cold cereal
products that currently do not claim health benefits from soluble fiber
from oats are less healthful than those that do make that claim. To the
extent that hot and cold cereals contain threshold quantities of
soluble fiber from other grains that reduce the risk for CHD, in
addition to barley, yet are not permitted to make health claims, the
changes in healthful consumption estimated for this interim final rule
may be overstated. In the extreme case, if all current hot and cold
cereal products were manufactured with grains having identical health
benefits as those from beta-glucan soluble fiber from oats and barley,
then the health benefits from allowing soluble fiber from barley to
claim health benefits estimated for the interim final rule would be
zero, because consumers would switch among equally healthful
alternatives.
b. Costs--The costs incurred by manufacturers of foods that are
newly developed or relabeled to claim health benefits from soluble
fiber from barley would be voluntarily incurred. No manufacturer would
incur these costs if it were not profitable to do so and, consequently
they are not considered mandatory compliance costs. Nevertheless, we do
anticipate a voluntarily incurred allocation of resources devoted to
re-labeling and new product development as a result of this interim
final rule, and that the magnitude of this resource allocation is
important for characterizing the broader economic impact on society. We
refer to these voluntarily incurred costs as change-over costs.
Although the mandatory compliance costs of this interim final rule
are zero, the voluntarily incurred change-over costs that would result
include costs of re-labeling products that contain threshold levels of
beta-glucan soluble fiber from barley but are currently not allowed to
claim health benefits, as well as the costs for developing products
specifically to make the soluble fiber from barley health claim. The
new product development change-over costs include the costs of idea
generation, laboratory testing of new recipes that meet the threshold
levels of beta-glucan soluble fiber from barley, process testing, shelf
life studies, production related market research, production testing in
increasingly large batch sizes, and consumer testing and marketing
evaluations. At any stage in the development process a product may be
dropped from consideration. Products that undergo a portion of the
process but that are eventually dropped from consideration also
constitute a new product development cost. Re-labeling change-over
costs for products that contain threshold amounts of beta-glucan
soluble fiber from barley but are currently not allowed to claim health
benefits, include the costs of testing food products to verify that the
levels of beta-glucan soluble fiber are consistent with that required
for the health claim, the fixed and variable printing costs for the new
label, and the storage costs associated with disposing old labels.
We use the FDA Reformulation Cost Model (Ref. 22) and the FDA
Labeling Cost Model (Ref. 23) to estimate the new product development
and labeling change-over costs from making health claims for beta-
glucan soluble fiber from barley. Data on industry categories that are
available to use in these models include from the North American
Industry Classification System (NAICS) code 311230, Breakfast Cereals
Manufacturing which includes both hot and cold cereals. Based on the
earlier results, we estimate that the potential market shares for
breakfast cereals that claim health benefits from soluble fiber from
barley would be 24.5 percent of the market for all hot cereals, and 5.1
percent of the market for all cold cereals.
In order to separate the broad NAICS category into hot and cold
cereals, we use estimates obtained from the FLAPS and IRI data sets
indicating cold cereal sales of approximately $6.5 billion, and hot
cereals sales of approximately $0.6 billion (Ref. 21). Consequently,
the hot cereal market is approximately 8 percent (i.e., 100 x $0.6
billion / $7.1
[[Page 76160]]
billion) of the size of the breakfast cereals market, and the cold
cereal market is approximately 92 percent (i.e., 100 x $6.5 billion /
$7.1 billion) of the breakfast cereals market. In addition, we estimate
that approximately 5 percent (i.e., 5.1 percent x 92 percent rounded to
the nearest percent) of the sales from NAICS 311230 reflects the market
share of cold cereals that would claim health benefits from barley, and
that 2 percent (i.e., 24.5 percent x 8 percent rounded to the nearest
percent) of the sales from NAICS 311230 reflects that market share of
hot cereals that would claim health benefits from barley. Consequently,
we estimate that 7 percent of NAICS 311230 (i.e., 5 percent plus 2
percent) would either develop new products or re-label existing
products in order to claim health benefits from beta-glucan soluble
fiber from barley.
Based on the earlier discussion, we expect that one-half of all hot
and cold cereals that would claim health benefits from soluble fiber
from barley would be newly developed products (i.e., 3.5 percent of
NAICS 311230), while one-half would be re-labeled existing products
(i.e., 3.5 percent of NAICS 311230) that currently meet the soluble
fiber from barley content requirements for making a health claim. To
incorporate uncertainty surrounding our methodology, we estimate a
uniform distribution between 2 and 5 percent of NAICS 311230 would re-
label and between 2 and 5 percent of NAICS 311230 would be from new
products developed in order to claim health benefits from soluble fiber
from barley.
We ran the Reformulation Cost Model for the case when major
production process changes are necessary to approximate the change-over
costs for new product development. These costs were estimated assuming
a 12-month voluntary compliance period. We assume that product lines
would become discontinued as a result of this interim final rule due to
insufficient consumer demand, reflecting the assumption that growth in
total breakfast cereal consumption will not change. However, we do not
estimate the costs of discontinued product lines. High, low and medium
estimates are generated from the model based on experts opinions, and
are reported in table 1 for assumed market shares of 2 percent 3.5
percent, and 5 percent of the sales of breakfast cereals from new
products developed to claim health benefits from soluble fiber from
barley.
Table 1.
----------------------------------------------------------------------------------------------------------------
Voluntarily Incurred New Product Development Change-Over Costs
Assumed Market Share --------------------------------------------------------------------------
Low Medium high
----------------------------------------------------------------------------------------------------------------
Low market share $8,128,000 $16,768,000 $33,813,000
----------------------------------------------------------------------------------------------------------------
3.5 percent market share $14,224,000 $29,343,000 $59,172,000
----------------------------------------------------------------------------------------------------------------
High market share $20,320,000 $41,919,000 $84,532,000
----------------------------------------------------------------------------------------------------------------
We ran the Labeling Cost Model assuming a 12-month voluntary
compliance period to estimate the change-over costs for re-labeling
existing products that meet the soluble fiber from barley requirements
but are currently unable to claim health benefits. High, low and medium
estimates of the change-over costs are generated from the model based
on experts opinions, and are reported in table 2 for assumed market
shares of 2 percent 3.5 percent, and 5 percent of the sales of
breakfast cereals from re-labeled products.
Table 2.
----------------------------------------------------------------------------------------------------------------
Voluntarily Incurred Re-labeling Changeover Costs
Assumed Market Share --------------------------------------------------------------------------
Low Medium High
----------------------------------------------------------------------------------------------------------------
Low market share $200,000 $287,000 $479,000
----------------------------------------------------------------------------------------------------------------
3.5 percent market share $353,000 $502,000 $837,000
----------------------------------------------------------------------------------------------------------------
High market share $504,000 $717,000 $1,198,000
----------------------------------------------------------------------------------------------------------------
In table 3 we report the annualized voluntarily incurred change-
over costs for the interim final rule computed assuming discount rates
of 3 percent and 7 percent over a 10-year horizon. All costs are
assumed to be incurred in the beginning of the second year following
promulgation of the interim final rule and there would be no recurring
annual change-over costs after the second year. The low, medium, and
high estimates for the voluntarily incurred re-labeling and new product
development change-over costs were added together, and the appropriate
discount rate applied. This total cost was then divided by 10 to get
the annualized costs. Because producers choose the time period for the
development and re-labeling of new products, the actual time periods
for the changes can be different from the assumed 12 months assumed in
the models and reported in the tables. We expect that the time periods
chosen would be shorter and the voluntarily incurred costs higher, the
greater the perceived consumer response to the health claims from
soluble fiber from barley.
[[Page 76161]]
Table 3.
----------------------------------------------------------------------------------------------------------------
Annualized Voluntarily Incurred Change-Over Costs for Interim Final Rule
Discount Rate --------------------------------------------------------------------------
Low Medium High
----------------------------------------------------------------------------------------------------------------
7 percent $1,932,000 $3,965,000 $7,979,000
----------------------------------------------------------------------------------------------------------------
3 percent $2,007,000 $4,119,000 $8,288,000
----------------------------------------------------------------------------------------------------------------
B. Regulatory Flexibility Analysis
FDA has examined the economic implications of this interim final
rule as required by the Regulatory Flexibility Act (5 U.S.C. 601-612).
If a rule has a significant economic impact on a substantial number of
small entities, the Regulatory Flexibility Act requires agencies to
analyze regulatory options that would lessen the economic effect of the
rule on small entities. Small businesses will incur costs only if they
choose to take advantage of the marketing opportunity presented by this
rule. No small entity, however, will choose to bear the cost of adding
the health claim to its product labels unless it believes that the
health claim will lead to increased sales of its product sufficient to
justify the costs. No small business would be required to incur costs.
FDA certifies that this interim final rule would not have a significant
economic impact on a substantial number of small entities.
C. Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (Public Law
104-4) requires cost-benefit and other analyses before any rule making
if the rule would include a ``Federal mandate that may result in the
expenditure by State, local, and tribal governments, in the aggregate,
or by the private sector, of $100,000,000 or more (adjusted annually
for inflation) in any one year.'' The current inflation-adjusted
statutory threshold is about $115 million. FDA has determined that this
interim final rule would not constitute a significant rule under the
Unfunded Mandates Reform Act.
IX. Environmental Impact
FDA has determined under 21 CFR 25.32(p) that this action is of a
type that does not individually or cumulatively have a significant
effect on the human environment. Therefore, neither an environmental
assessment nor an environmental impact statement is required.
X. Paperwork Reduction Act
FDA concludes that the labeling provisions of this interim final
rule are not subject to review by the Office of Management and Budget
because they do not constitute a ``collection of information'' under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Rather, the
food labeling health claim on the association between consumption of
barley beta-glucan soluble fiber and CHD risk is a ``public disclosure
of information originally supplied by the Federal Government to the
recipient for the purpose of disclosure to the public.'' (see 5 CFR
1320.3(c)(2)).
XI. Federalism
FDA has analyzed this interim final rule in accordance with the
principles set forth in Executive Order 13132. We have determined that
the rule does not contain policies that have substantial direct effects
on the states or on the relationship between the National Government
and the States, or on the distribution of power and responsibility
among the various levels of government. Accordingly, we have concluded
that the interim final rule does not contain policies that have
federalism implications as defined in the order and, consequently, a
federalism summary impact statement is not required.
XII. Comments
Interested persons may submit to the Division of Dockets Management
(see ADDRESSES) written or electronic comments regarding this document.
Submit a single copy of electronic comments or two paper copies of any
mailed comments, except that individuals may submit one paper copy.
Comments are to be identified with the docket number found in brackets
in the heading of this document. Received comments may be seen in the
Division of Dockets Management between 9:00 a.m. and 4:00 p.m., Monday
through Friday.
XIII. References
The following references have been placed on display in the
Division of Dockets Management (see ADDRESSES) and may be seen by
interested persons between 9 a.m. and 4 p.m., Monday through Friday.
1. National Barley Foods Council, ``Petition for Health Claim--
Barley Beta-Glucan Soluble Fiber and Barley Foods Containing Beta-
Glucan Soluble Fiber and Coronary Heart Disease,'' (Docket 2004P-
0512, CP1), August 2, 2004.
2. American Association of Cereal Chemists, Inc., AACC Method
55-99: ``Glossary--Barley,'' Approved Methods of the American
Association of Cereal Chemists, 10th Edition, St Paul, MN, 2000.
3. Cooper, R., J. Cutler, P. Desvigne-Nickens, S.P. Fortmann, et
al., ``Trends and Disparities in Coronary Heart Disease, Stroke, and
Other Cardiovascular Diseases in the United States; Findings of the
National Conference on Cardiovascular Disease Prevention,''
Circulation;102:3137-3147, 2000.
4. National Cholesterol Education Program Expert Panel on
Detection, Evaluation, and Treatment of High Blood Pressure in
Adults (Adult Treatment Panel III), Third Report of the NCEP Adult
Treatment Panel III, Executive Summary, Bethesda, MD: National
Institutes of Health, National Heart, Lung, and Blood Institute
(http://www.nhlbi.nih.gov/guidelines/cholesterol/atp_iii.htm), May
2001.
5. ``Guidance for Industry: Significant Scientific Agreement in
the Review of Health Claims for Conventional Foods and Dietary
Supplements,'' Rockville, MD: U.S. Food and Drug Administration
(http://www.cfsan.fda.gov/~dms/ssaguide.html), December 1999.
6. Pins, J.J., J.M. Keenan, D. Geleva, et al., ``Whole Grains,
Refined Grains, or is it Just the Soluble Fibers?'' FASEB Journal,
14:A563, 2000.
7. Lupton, J.R., M.C. Robinson, and J.L. Morin, ``Cholesterol-
Lowering Effect of Barley Bran Flour and Oil,'' Journal of the
American Dietetic Association, 94:65-70, 1994.
8. Keogh, G.F., G.J.S. Cooper, T.B. Mulvey, et al., ``Randomized
Controlled Crossover Study of the Effect of a Highly Beta-Glucan-
Enriched Barley on Cardiovascular Disease Risk Factors in Mildly
Hypercholesterolemic Men,'' American Journal of Clinical Nutrition,
78:711-718, 2003.
9. Newman, R.K., S.E. Lewis, C.W. Newman, et al.,
``Hypocholesterolemic Effect of Barley Foods on Healthy Men,''
Nutrition Reports International, 39:749-760, 1989.
10. Ikegami, S., M. Tomita, S. Honda, et al., ``Effect of Boiled
Barley-Rice-Feeding in Hypercholesterolemic and Normolipemic
Subjects,'' Plant Foods for Human Nutrition, 49:317-328, 1996.
11. Narain, L.P., K. Shukla, R.L. Bijlani, et al., ``Metabolic
Responses to a Four-Week Barley Supplement,'' International Journal
of Food Sciences and Nutrition, 43:41-46, 1992.
12. Behall, K.M., D. Scholfield, and J. Hallfrisch, ``Lipids
Significantly Reduced by Diets Containing Barley in Moderately
[[Page 76162]]
Hypercholesterolemic Men,'' Journal of the American College of
Nutrition, 23:55-62, 2004.
13. Behall, K.M., D.J. Scholfield, and J. Hallfrisch, ``Diets
Containing Barley Significantly Reduce Lipids in Mildly
Hypercholesterolemic Men and Women,'' American Journal of Clinical
Nutrition, 80:1185-1193, 2004.
14. McIntosh, G.H., J. Whyte, R. McArthur, et al., ``Barley and
Wheat Foods: Influence on Plasma Cholesterol Concentrations in
Hypercholesterolemic Men,'' American Journal of Clinical Nutrition,
53:1205-1209, 1991.
15. Newman, R.K., C.W. Newman, and H. Graham, ``The
Hypocholesterolemic Function of Barley Beta-Glucans,'' Cereal Foods
World, 34:883-886, 1989.
16. Li, J., T. Kaneko, L-Q Qin, et al., ``Effects of Barley
Intake on Glucose Tolerance, Lipid Metabolism, and Bowel Function in
Women, Nutrition, 19:926-929, 2003.
17. Davidson, M.H., L.D. Dugan, J.H. Burns, et al., ``The
Hypocholesterolemic Effects of [beta]-Glucan in Oatmeal and Oat
Bran; A Dose-Controlled Study,'' Journal of the American Medical
Association, 265(14):1833-9, April 10, 1991.
18. Ripsin, C.M., J.M. Keenan, D.R. Jacobs, et al., ``Oat
Products and Lipid Lowering; A Meta-Analysis,'' Journal of the
American Medical Association, 267(24):3317-25, June 24, 1992.
19. National Center for Health Statistics, Centers for Disease
Control and Prevention, Hyattsville, MD: FASTATS (updated September
22, 2005) (http://www.cdc.gov/nchs/fastats/deaths.htm).
20. National Center for Chronic Disease Prevention and Health
Promotion, Centers for Disease Control and Prevention, ``Heart
Disease Burden,'' Chronic Disease Notes and Reports (serial on the
Internet), 17(1):(about 6 pp.) (http://www.cdc.gov/nccdphp/cdnr/cdnr_fall0403.htm), fall 2004.
21. U.S. Food and Drug Administration, Center for Food Safety
and Applied Nutrition, Office of Nutritional Products, Labeling, and
Dietary Supplements, ``Food Label and Package Survey 2000-2001,''
(http://www.cfsan.fda.gov/~dms/lab-flap.html), August 2004.
22. RTI International, ``Cost of Reformulating Foods and
Cosmetics, Final Report,'' prepared for Ed Puro, DHHS/FDA/CFSAN,
prepared by White, W.J, E. Gledhill, S. Karns, and M. Muth, RTI
Project Number 08184.003, July 2002.
23. RTI International, ``FDA Labeling Cost Model, Final
Report,'' prepared for Amber Jessup, DHHS/PHS/FDA/CFSAN, prepared by
Muth, M., E. Gledhill, and S. Karns, RTI Project Number 06673.010,
January 2003.
List of Subjects in 21 CFR Part 101
Food labeling, Incorporation by reference, Nutrition, Reporting and
recordkeeping requirements.
0
Therefore, under the Federal Food, Drug, and Cosmetic Act and under
authority delegated to the Commissioner of Food and Drugs, 21 CFR part
101 is amended as follows:
PART 101--FOOD LABELING
0
1. The authority citation for 21 CFR part 101 continues to read as
follows:
Authority: 15 U.S.C. 1453, 1454, 1455; 21 U.S.C. 321, 331, 342,
343, 348, 371; 42 U.S.C. 243, 264, 271.
0
2. Section 101.81 is amended by revising paragraphs (c)(2)(i)(G)(1),
(c)(2)(ii)(A) introductory text, (c)(2)(iii)(A)(1) and (d)(5), and by
adding new paragraph (c)(2)(ii)(A)(5) to read as follows:
Sec. 101.81 Health claims: Soluble fiber from certain foods and risk
of coronary heart disease (CHD).
* * * * *
(c) * * *
(2) * * *
(i) * * *
(G) * * *
(1) 3 g or more per day of [beta]-glucan soluble fiber from either
whole oats or barley, or a combination of whole oats and barley.
* * * * *
(ii) * * *
(A) Beta ([beta]) glucan soluble fiber from the whole oat and
barley sources listed below. [beta]-glucan soluble fiber will be
determined by method No. 992.28 from the ``Official Methods of Analysis
of the AOAC INTERNATIONAL,'' 16th ed. (1995), which is incorporated by
reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies
may be obtained from the AOAC INTERNATIONAL, 481 North Frederick Ave.,
suite 500, Gaithersburg, MD 20877, or may be examined at the Center for
Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy.,
College Park, MD 20740, or at the National Archives and Records
Administration (NARA). For information on the availability of this
material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html;
* * * * *
(5) Whole grain barley and dry milled barley. Dehulled and hull-
less whole grain barley with a [beta]-glucan soluble fiber content of
at least 4 percent (dwb) and a total dietary fiber content of at least
10 percent (dwb). Dry milled barley grain products include barley bran,
barley flakes, barley grits, pearl barley, barley flour, barley meal,
and sieved barley meal that are produced from clean, sound dehulled or
hull-less barley grain using standard dry milling techniques, which may
include steaming or tempering, and that contain at least 4 percent
(dwb) of [beta]-glucan soluble fiber and at least 8 percent (dwb) of
total dietary fiber, except barley bran and sieved barley meal for
which the minimum [beta]-glucan soluble fiber content is 5.5 percent
(dwb) and minimum total dietary fiber content is 15 percent (dwb).
Dehulled barley, hull-less barley, barley bran, barley flakes, barley
grits, pearl barley, and barley flour are as defined in the Barley
Glossary (AACC Method 55-99), published in Approved Methods of the
American Association of Cereal Chemists, 10th ed. (2000), pp. 1 and 2,
which is incorporated by reference in accordance with 5 U.S.C. 552(a)
and 1 CFR part 51. Copies may be obtained from the American Association
of Cereal Chemists, Inc., 3340 Pilot Knob Rd., St. Paul, Minnesota,
55121, or may be examined at the Center for Food Safety and Applied
Nutrition Library, 5100 Paint Branch Pkwy., College Park, MD 20740, or
at the National Archives and Records Administration (NARA). For
information on the availability of this material at NARA, call 202-741-
6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. Barley meal is unsifted,
ground barley grain not subjected to any processing to separate the
bran, germ, and endosperm. Sieved barley meal is an endosperm cell
wall-enriched fraction of ground barley separated from meal by sieving
or by air classification.
* * * * *
(iii) * * *
(A) * * *
(1) One or more of the whole oat or barley foods from paragraphs
(c)(2)(ii)(A)(1), (2), (3), and (5) of this section, and the whole oat
or barley foods shall contain at least 0.75 gram (g) of soluble fiber
per reference amount customarily consumed of the food product; or
* * * * *
(d) * * *
(5) The claim may state that a diet low in saturated fat and
cholesterol that includes soluble fiber from whole oats or barley is
consistent with ``Nutrition and Your Health: Dietary Guidelines for
Americans,'' U.S. Department of Agriculture (USDA) and Department of
Health and Human Services (DHHS), Government Printing Office (GPO);
* * * * *
Dated: December 12, 2005.
Jeffrey Shuren,
Assistant Commissioner for Policy.
[FR Doc. 05-24387 Filed 12-22-05; 8:45 am]
BILLING CODE 4160-01-S