[Federal Register Volume 89, Number 233 (Wednesday, December 4, 2024)]
[Notices]
[Pages 96205-96207]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-27810]
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Notices
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains documents other than rules
or proposed rules that are applicable to the public. Notices of hearings
and investigations, committee meetings, agency decisions and rulings,
delegations of authority, filing of petitions and applications and agency
statements of organization and functions are examples of documents
appearing in this section.
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Federal Register / Vol. 89, No. 233 / Wednesday, December 4, 2024 /
Notices
[[Page 96205]]
DEPARTMENT OF AGRICULTURE
Food Safety and Inspection Service
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
[Docket No. FSIS-2024-0021]
Food Date Labeling
AGENCY: Food Safety and Inspection Service (FSIS), U.S. Department of
Agriculture (USDA); Food and Drug Administration (FDA), U.S. Department
of Health and Human Services (HHS).
ACTION: Request for Information.
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SUMMARY: FSIS and FDA (we, the agencies) are seeking public input on
food date labeling. This Request for Information seeks information on
industry practices and preferences for date labeling, research results
on consumer perceptions of date labeling, and any impact date labeling
may have on food waste.
DATES: Submit comments on or before February 3, 2025.
ADDRESSES: FSIS invites interested persons to submit information.
Submit comments by one of the following methods:
Federal eRulemaking Portal: This website allows commenters
to type short comments directly into the comment field on the web page
or to attach a file for lengthier comments. Go to https://www.regulations.gov. Follow the online instructions at that site for
submitting comments.
Mail: Send to Docket Clerk, U.S. Department of
Agriculture, Food Safety and Inspection Service, 1400 Independence
Avenue SW, Mailstop 3758, Washington, DC 20250-3700.
Hand- or Courier-Delivered Submittals: Deliver to 1400
Independence Avenue SW, Jamie L. Whitten Building, Room 350-E,
Washington, DC 20250-3700.
Instructions: All items submitted by mail or electronic mail must
include the Agency name and docket number FSIS-2024-0021. Comments
received in response to this docket will be made available for public
inspection and posted without change, including any personal
information, to https://www.regulations.gov.
Docket: For access to background documents or comments received,
call 202-720-5046 to schedule a time to visit the FSIS Docket Room at
1400 Independence Avenue SW, Washington, DC 20250-3700.
FOR FURTHER INFORMATION CONTACT:
FSIS: Rachel Edelstein, Assistant Administrator, Office of Policy
and Program Development; Telephone: (202) 205-0495.
FDA: Peter Koufopoulos; Deputy Director for Animal Derived Food;
Human Foods Program; Telephone: (240) 252-9709.
SUPPLEMENTARY INFORMATION:
Background
USDA and FDA jointly have broad jurisdiction and oversight over the
U.S. food supply. FSIS and FDA have responsibility for ensuring that
food labels on products over which they each have jurisdiction are
truthful and not misleading. This applies to foods produced
domestically, as well as foods imported from foreign countries. FSIS
has the authority to regulate the labeling of most meat (including
Siluriformes fish) and poultry products, and egg products. FDA has
authority over all other foods, including seafood (except Siluriformes
fish), game meat and shell eggs. Accordingly, some foods, such as eggs
and meat, are regulated by both agencies.
FSIS is responsible for ensuring that meat, poultry, and egg
products are safe, wholesome, and properly labeled and packaged. The
Agency administers a regulatory program for meat products under the
Federal Meat Inspection Act (FMIA) (21 U.S.C. 601 et seq.), for poultry
products under the Poultry Products Inspection Act (PPIA) (21 U.S.C.
451 et seq.), and for egg products under the Egg Products Inspection
Act (EPIA) (21 U.S.C. 1031 et seq.).
Under the FMIA, PPIA, and EPIA, any meat, poultry, or egg product
is misbranded if its labeling, including date labeling, is false or
misleading in any particular (21 U.S.C. 601(n)(1); 21 U.S.C. 453(h)(1);
21 U.S.C. 1036(b)). In particular, no product or any of its wrappers,
packaging, or other containers shall bear any false or misleading
marking, label, or other labeling, and no statement, word, picture,
design, or device which conveys any false impression or gives any false
indication of origin or quality or is otherwise false or misleading
shall appear in any marking or other labeling (9 CFR 317.8(a)),
381.129(b), 590.411(f)(1)).
For meat, poultry, and egg products under FSIS jurisdiction, dates
may be voluntarily applied to product labels provided the products are
labeled in a manner that is truthful and not misleading and in
compliance with FSIS regulations (see 9 CFR 317.8, 381.129, and
590.411). To comply, a calendar date, if shown on labeling, must
express both the month and day of the month. In the case of shelf-
stable (including thermally processed, commercially sterile products)
and frozen products, the year must also be displayed. Additionally,
immediately adjacent to the date must be a phrase explaining the
meaning of that date such as ``Best if Used By.''
FDA regulates a significant portion of the nation's food supply,
including fruits, vegetables, dairy (e.g., milk, cheese, yogurt), grain
(e.g., breads, cereals, rice), packaged foods (e.g., canned foods,
frozen foods, ready-to-eat foods), shell eggs (i.e., whole eggs that
are still in the shell), seafood (except Siluriformes fish), infant
formula, dietary supplements, beverages, and game meat. FDA helps
ensure that such foods are safe, sanitary, wholesome, and that their
labeling is truthful and non-misleading. To achieve this, FDA
administers regulatory programs under various authorities, including
the Federal Food, Drug, and Cosmetic Act (FD&C Act)(21 U.S.C. 9), the
Fair Packaging and Labeling Act(FPLA)(15 U.S.C. 39), and the Nutrition
Labeling and Education Act (NLEA)(21 U.S.C. 9 343-1).\1\
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\1\ Under section 201(ff) of the FD&C Act, dietary supplements
are deemed ``food'' for most purposes, and thus the labeling
requirements that apply to foods generally also apply to dietary
supplements, with some exceptions (e.g., nutrition labeling).
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Under section 403(a)(1) of the FD&C Act, a food is misbranded if
its labeling is false or misleading in any particular (21 U.S.C.
343(a)). Accordingly, a food would be deemed misbranded under
[[Page 96206]]
section 403(a)(1) of the FD&C Act if it has a date label that is false
or misleading.
The FPLA requires specific information (e.g., the net quantity of
contents) to be provided on the label of consumer commodities,
including food, to prevent unfair or deceptive packaging and labeling.
The NLEA, which amended the FD&C Act, requires most foods to bear
nutrition labeling, among other requirements. Section 403(w) of the
FD&C Act requires foods (other than a raw agricultural commodity) that
contain or are a major food allergen to be specifically labeled with
the name of the allergen source.
The Dietary Supplement Health and Education Act (DSHEA) amended the
FD&C Act to define the term ``dietary supplement'' and establish
requirements for dietary supplements. Under section 201(ff) of the FD&C
Act, dietary supplements are deemed ``food'' for most purposes, and
thus the labeling requirements that apply to foods generally also apply
to dietary supplements, with some exceptions. For example, specific
nutrition labeling requirements apply to dietary supplements.
FDA regulates infant formula under the FD&C Act and FDA's
implementing regulations, which require, among other things, that
infant formula labels include a ``Use by'' date (21 CFR 107.20(c)).
Accordingly, infant formula date labeling is outside the scope of this
Request for Information.
Food Loss and Waste
On June 12, 2024, the Biden-Harris Administration released the
final National Strategy for Reducing Food Loss and Waste and Recycling
Organics (the National Strategy).\2\ The National Strategy lays out a
path for the U.S. to meet its national goal of reducing food loss and
waste by 50 percent by 2030.
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\2\ https://www.usda.gov/sites/default/files/documents/NATIONAL-STRATEGY-FOR-REDUCING-FOOD-LOSS-AND-WASTE-AND-RECYCLING-ORGANICS.pdf.
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The U.S. Environmental Protection Agency (EPA) estimates that in
2019, 66 million tons of wasted food was generated in the food retail,
food service, and residential sectors, and most of this waste (about 60
percent) was sent to landfills. An additional 40 million tons of wasted
food was generated in the food and beverage manufacturing and
processing sectors.\3\ Wasted food is the single largest category of
material placed in municipal landfills. Wasted wholesome and safe food
represents nourishment that could have helped feed families in need.
Additionally, water, energy, arable land, and labor used to produce
wasted food could have been used for other purposes. Effectively
reducing food waste will require cooperation among federal, state,
tribal, territory, and local governments, food manufacturers,
agriculture producers, faith-based institutions, environmental
organizations, communities, and others, all along the entire supply
chain.
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\3\ Food: Material-Specific Data [verbar] US EPA.
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In response to the draft National Strategy for Reducing Food Loss
and Waste and Recycling Organics, FSIS and FDA received comments
encouraging an update of the Federal date labeling requirements,
including standardizing date labeling. Commenters noted that food
manufacturers use a variety of phrases such as ``Sell By,'' ``Use By,''
and ``Best By'' on product labels to describe dates on a voluntary
basis. According to commenters, the use of different phrases to
describe dates may cause consumer confusion and lead to the premature
disposal of wholesome and safe food, because it is past the date
printed on the package.
As explained in the final National Strategy, both FSIS and FDA
recommend that food industry members voluntarily apply the ``Best if
Used By'' food date label, which notes the date after which quality may
decline but the product may still be consumed. The ``Best if Used By''
label aims to lessen consumer confusion and reduce wasted food.\4\ In
addition, the ``Best if Used By'' label was the most frequently
perceived by consumers as communicating quality, among the food date
labels assessed by researchers at Johns Hopkins Center for a Livable
Future (CLF), which supports standardizing this label.\5\ Although FSIS
and FDA encourage the use of the phrase ``Best if Used By'', current
federal regulations do not prohibit industry from using other date
labeling phrases, such as ``Sell By'' or ``Use By,'' if they are
truthful and not misleading. It should be noted that industry groups
have taken steps to address consumer confusion.\6\ However, the number,
diversity, and complexity of food products in the marketplace along
with significant variability in the environmental, storage, and
distribution conditions of food create challenges for standardization
of food safety or quality date labels.
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\4\ See also https://www.fsis.usda.gov/food-safety/safe-food-handling-and-preparation/food-safety-basics/food-product-dating and
https://www.fda.gov/news-events/fda-voices/working-food-industry-reduce-confusion-over-date-labels.
\5\ Johns Hopkins Bloomberg School of Public Health. (2019).
Survey: Misunderstanding Food Date Labels Linked with Higher Food
Discards--Confusion about when to worry about food safety is
widespread. https://publichealth.jhu.edu/2019/survey-misunderstanding-food-datelabels-linked-with-higher-food-discards.
\6\ See https://www.fmi.org/docs/default-source/Industry-Topics-Doc/fact-sheet-product-code-dating-initiative.pdf?sfvrsn=59de6c6e_2.
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FSIS and FDA are requesting additional information on industry
practices and barriers for standardizing food date labeling, research
results on consumer perceptions of food date labeling, and any impact
date labeling may have on food loss and waste. The information may be
used to inform future policy decisions, guidance, or consumer education
campaigns on food date labels intended to help reduce the premature
discard of wholesome and safe food. Commenters should provide any data,
studies, or other evidence that supports their response. To help FSIS
and FDA review comments efficiently, please identify the question to
which you are responding by its associated category and number (e.g.
Industry Practices and Preferences for Date Labeling 1).
Questions for Commenters
Industry Practices and Preferences for Date Labeling
1. Which products contain date labels, and which do not? Why do
some products contain date labels and others do not?
2. What standards or criteria do manufacturers and producers
consider when deciding which food date label phrase to use? Are
different phrases used for different products or categories of
products, and if so, why? Are there legal or trade requirements or
marketing standards that impact which phrases are used (i.e., local or
state requirements, industry best practice standards, etc.)? If so,
please describe.
3. What standards or criteria do manufacturers and producers
consider when deciding what date to use?
4. Would a particular product have a different date depending on
the phrase used (e.g., would the date be the same or different if the
phrase were ``Best if Used By'' versus ``Use By'' or ``Freeze By'')? If
so, please explain.
5. What challenges or limitations do food manufacturers have when
establishing or changing food date labels?
6. Are there costs associated with changing the date label phrase
or date used in addition to the costs associated with any label change?
If so, please explain what those are. What data are available on the
use of certain food date label phrases and cost to manufacturers,
retailers, or consumers?
7. How do grocery retailers determine that a food item is no longer
sellable? Do
[[Page 96207]]
the considerations differ depending on the food item? Do the
considerations take into account the phrase and/or date on the label,
and if so, how?
Research on Consumer Perception of Date Labeling
8. What studies or data are available on consumer understanding of
current date labeling on food that FSIS and FDA regulate, and why are
these studies or data important for FSIS and FDA to consider? Are there
data and studies that demonstrate that consumers are confused by date
labels and believe the dates determine whether food is safe? Are there
any available studies or data on whether and how consumers consider
food date labels when grocery shopping or when deciding to discard food
at the home?
9. What data are available on the most effective ways for
presenting food date labels on food items so that consumers can easily
access and clearly understand the information?
10. What studies exist on the factors that should be considered in
a national education campaign aimed at reducing consumer confusion
about date labels? Please explain your reasoning as to why a study
should be considered.
Food Loss and Waste Research
11. What studies detailing the effects of date labeling on food
waste should FSIS and FDA consider and why?
12. What factors do firms (e.g., manufacturers, retailers, food
banks) and individuals consider when determining which food items to
donate or discard? Specifically, do firms or individuals use food date
labels to inform decisions to donate or discard food items? Please
provide supporting studies or data.
13. What estimates are available concerning the value of food that
is discarded due to date labels, including any studies regarding the
value discarded due to confusion of date labels?
Additional Public Notification
Public awareness of all segments of rulemaking and policy
development is important. Consequently, FSIS will announce this Federal
Register publication online through the FSIS web page located at http://www.fsis.usda.gov/federal-register. FSIS will also make copies of this
publication available through the FSIS Constituent Update, which is
used to provide information regarding FSIS policies, procedures,
regulations, Federal Register notices, FSIS public meetings, and other
types of information that could affect or would be of interest to our
constituents and stakeholders. The Constituent Update is available on
the FSIS web page. Through the web page, FSIS can provide information
to a much broader, more diverse audience. In addition, FSIS offers an
email subscription service that provides automatic and customized
access to selected food safety news and information. This service is
available at: https://www.fsis.usda.gov/subscribe. Options range from
recalls to export information, regulations, directives, and notices.
Customers can add or delete subscriptions themselves and have the
option to password-protect their accounts.
USDA Non-Discrimination Statement
In accordance with Federal civil rights law and USDA civil rights
regulations and policies, USDA, its Mission Areas, agencies, staff
offices, employees, and institutions participating in or administering
USDA programs are prohibited from discriminating based on race, color,
national origin, religion, sex, gender identity (including gender
expression), sexual orientation, disability, age, marital status,
family/parental status, income derived from a public assistance
program, political beliefs, or reprisal or retaliation for prior civil
rights activity, in any program or activity conducted or funded by USDA
(not all bases apply to all programs). Remedies and complaint filing
deadlines vary by program or incident. Program information may be made
available in languages other than English. Persons with disabilities
who require alternative means of communication to obtain program
information (e.g., Braille, large print, audiotape, American Sign
Language) should contact the responsible Mission Area, agency, or staff
office; the USDA TARGET Center at (202) 720-2600 (voice and TTY); or
the Federal Relay Service at (800) 877-8339.
To file a program discrimination complaint, a complainant should
complete Form AD-3027, USDA Program Discrimination Complaint Form,
which can be obtained online at https://www.usda.gov/forms/electronic-forms, from any USDA office, by calling (866) 632-9992, or by writing a
letter addressed to USDA. The letter must contain the complainant's
name, address, telephone number, and a written description of the
alleged discriminatory action in sufficient detail to inform the
Assistant Secretary for Civil Rights (ASCR) about the nature and date
of an alleged civil rights violation. The completed AD-3027 form or
letter must be submitted to USDA by:
(1) Mail: U.S. Department of Agriculture, Office of the Assistant
Secretary for Civil Rights, 1400 Independence Avenue SW, Washington, DC
20250-9410; or
(2) Fax: (833) 256-1665 or (202) 690-7442; or
(3) Email: [email protected].
USDA is an equal opportunity provider, employer, and lender.
Done at Washington, DC.
Paul Kiecker,
Administrator.
Kimberlee Trzeciak,
Deputy Commissioner for Policy, Legislation, and International Affairs,
Food and Drug Administration.
[FR Doc. 2024-27810 Filed 12-3-24; 8:45 am]
BILLING CODE 3410-DM-P