january 25, 2012 regulatory update report to ncc marketing committee robert o. winters

January 25, 2012

Regulatory UpdateReport to NCC Marketing Committee

Robert O. Winters

www.hoganlovells.com 2

Agenda

• FSIS single ingredient meat and poultry nutrition labeling

• FSIS generic label approval proposed rule• WTO ruling on country of origin labeling• NRC/NAS recommendations on release of FSIS

establishment-specific food safety data• Modernization of poultry slaughter inspection

system (NEW!)

www.hoganlovells.com

Single Ingredient Meat & Poultry Nutrition Labeling

• Final rule new effective date: March 1, 2012

• Requires nutrition labeling of:– Major cuts of single-ingredient, raw

meat & poultry– Ground or chopped meat & poultry,

with or without seasonings– Unless exemption applies

• Nutrition information required either on label or at point-of-purchase (e.g., by sign or brochure)

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• Major cuts (9 CFR 381.170):– Whole bird (without neck &

giblets)– Breast– Wing– Drumstick– Thigh

• Non-major cuts:– Whole bird (with neck & giblets)– “Tenders”

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• Exemptions for major cuts:– Products intended for further processing– Products no for sale to consumers– Products in individually wrapped small packages < 1 oz. PROVIDED labels bear no nutrition claims or information

• Other exemptions for major cuts:– Products that are custom slaughtered or prepared– Products intended for export

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• Exemptions for ground/chopped products:– Products ground/chopped at customer’s request at retail– In packages with surface area for labeling <12 sq. inches

(address/telephone number must be provided)– Products produced by small businesses that use %fat and

%lean on label PROVIDED labels bear no nutrition claims or information

• Other exemptions for ground/chopped products:– Products produced by a small business (per 9 CFR §

381.500(a)(1))

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• “% Lean” claims on ground or chopped products that are not “low fat” are permitted, provided a statement of fat percentage is made that is:– contiguous to,– in same font type, size &

color as, and– on same color background

as lean claim

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Generic Label Approval Proposed Rule

• Published on December 5, 2011• Intended to streamline generic

approval process• Would apply to greatly expanded

categories of labels except:– Labels for temporary approval– Labels for products produced under

religious exemptions– Labels for export with deviations

from FSIS requirements– Labels with claims and special

statements not defined by FSIS regulations/policies

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• Undefined claim or special statement could be submitted in label context or in isolation, but only claim/statement would be reviewed– Health claims– Negative claims (e.g., “gluten free”)– Ingredient & processing claims (e.g., “high pressure processing”)– Structure/function claims– Organic and natural claims– Special instructions or disclaimers (“for cooking only” or “not tested for

E. coli O157:H7”)– Heart graphics– Geographic landmarks

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• Label eligible for generic approval must have all mandatory features as well as “well established” claims/statements:– Nutrient content claims– Claims of geographical significance (e.g., “Italian style”)– Country of origin labeling– Allergen statements– Calendar dates (e.g., “Sell by” or “Use before”)– “Fresh” claims on poultry– USDA quality-control system logo & accompanying wording– Irradiated product labeling

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• Recordkeeping requirements for labeling, formulation, and processing procedures would remain

• FSIS would monitor compliance & review samples of generically approved labels from establishment records

• Comment period open until February 3, 2012 (extension likely?)

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WTO Ruling on Country of Origin Labeling

• Provisions implemented by 2002 and 2008 Farm Bills + Vilsack letter recommending voluntary labeling

• Renewed challenge by Canada and Mexico after USTR settlement overturned by Obama Administration

• Focus on COOL labeling for cattle and hog muscle cuts


WTO Ruling on Country of Origin Labeling

• Dispute Settlement Body ruled in November 2011 that COOL requirements violate WTO rules:– Imported products receive less favorable

treatment than domestic – “Unnecessary obstacles to international

trade” because COOL was not shown to provide accurate & meaningful information to consumers

– Vilsack letter was not a reasonable administration of COOL requirements

• US can appeal, amend COOL law/regulations, resolve, or get hit with retaliatory trade restrictions

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NRC/NAS Recommendations on Data Release

• The Potential Consequences of Public Release of Food Safety and Inspection Service Establishment-Specific Data report released November 30, 2011

• Conducted at request of FSIS to explore Internet-based release of data gathered by the agency during regulatory inspections


NRC/NAS Recommendations on Data Release

• Major findings and conclusions:– Release would increase transparency & public’s “right to know”– FSIS would benefit from consulting with other agencies that already

disclose facility-specific information– Publicly released data could provide economic incentives to protect

brand reputation, allow consumers to make more informed decisions, and provide better insights into food safety practices

– The risks associated with release – e.g., inadvertent CBI disclosure costs of information systems, public misinterpretation – are outweighed by the benefits

– Data disclosures need to be carefully designed and monitored– Release would improve food safety and ultimately result in public

health benefits

• Unclear whether FSIS has resources to implement


Modernization of Poultry Slaughter Inspection

• Advance copy of proposed rule issued on Jan. 23 (90-day comment period)

• Would create new inspection system for young chicken and turkey slaughter establishments

• Would eliminate the existing Streamlined Inspection System (SIS), New Line Speed Inspection System (NELS) and New Turkey Inspection System (NTIS)

• Two inspection models would be available:– Proposed system– Traditional inspection

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Modernization of Poultry Slaughter Inspection

• Key theme: Allow establishments more flexibility to monitor and control food safety risks in slaughter process while holding them responsible through recordkeeping sampling, and increased offline inspection

• Changes also would be made to traditional inspection and poultry inspection in general

• Waivers associated with technologies under the rule would no longer be necessary

• No effect on the Salmonella Initiative Project (SIP)• More to come…

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Questions?


Contact Information

Robert O. Winters

Regulatory Attorney

Hogan Lovells US, LLP

[email protected]

202-637-5710

mailto:[email protected]


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january 25, 2012 regulatory update report to ncc marketing committee robert o. winters

Documents

labeling slide

nutrition claims

chopped meat poultry

processing products

lean claims

major cuts of single

nutrition information

winters slide