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Wednesday, February 17, 2016

Waiting on FDA



Hello!
I hope that 2016 is off to a good start for you and your business and that you are looking forward to great new things!  While we look forward to seeing what 2016 will bring, many industries continue to wait for action from FDA.  I have listed just a few topics that various industry sectors hope to have clarified in 2016 below.

Foods
It has been two years since FDA proposed dramatic changes to nutrition labeling regulations (http://tinyurl.com/jjvls5q) .  Will the final rule require that ‘Added Sugars’ be listed in the nutrition facts box as originally proposed?  Industry has objected to this particularly since the amount of sugar added to jams, applesauce, etc. can vary with the inherent sweetness of the fruit. Since there is no lab test that can distinguish between naturally-occurring and added sugars, it is difficult to understand how FDA, which prides itself on being a science based organization, can ensure compliance with this rule.

Restaurant Menu Labeling: The publication of the final rules for calorie declarations on restaurant menus was delayed in 2013 and then in 2015 the compliance date for this regulation was delayed by one year to December of 2016.  Will chain restaurants really be required to post caloric values on their menus and menu boards?  While seemingly simple, there are genuine challenges with complying with this rule.  First, the accuracy required by the regulation could be tough to meet since even though restaurants are careful about portioning, there is variation.  Second, the regulation requires chain restaurants to list the calories on alcoholic beverages but the wine, beer and spirits industries are not required to provide calorie information. How is a restaurant supposed to comply? (See more on the rule: http://tinyurl.com/j7vwkgo.)

Pet Foods: In 2007 Congress mandated that FDA take over regulation of pet food.  Since that time FDA has been working with State pet and animal food regulators to come up with ingredient definitions that would meet FDA criteria.  As that progresses, FDA’s Center or Veterinary Medicine is scheduled to publish draft guidance documents that pertain to the pet food industry:
Animal Food Current Good Manufacturing Practices
Hazard Analysis and Risk-Based Preventive Controls for Food for Animals
Human Food By-Products for Use as Animal Food

Dietary Supplements
It has been four and a half years since the first draft of the proposed guidance on New Dietary Ingredients was published (http://tinyurl.com/jtuqe4r) .  In 2013 FDA has proposed that the final rule would be published in 2014.  We are still waiting but it could be published any day!

Over the Counter Drugs
The FDA monograph that covers hand sanitizers and antibacterial soaps and body washes has been tentative since 1994.  In 2010 a lawsuit was filed to try to force FDA to finalize the monograph.  In December of 2013, FDA published a proposed rule stating that there was not sufficient data to support the safety of these products and that additional data on both safety and clinical benefit was required (http://tinyurl.com/z26bgs4).  The comment period closed in June of 2014 but no final rule has been issued.

Homeopathics
Both the FDA and FTC held hearings in 2015 looking into the regulation of homeopathic medicines.  The tone of these hearings made it very clear that both agencies view homeopathic products as quackery and would like to change the regulatory framework for homeopathic products.  Under the current policy, homeopathic products that comply with the Homeopathic Pharmacopoeia of the United States (HPUS) may be marketed in the US.  Unfortunately, some companies have introduced products that do not comply with HPUS to the market.  It seems that this is due, at least in part, to FDA’s complete failure to enforce the current regulations that apply to homoepathics.  This industry is waiting to see whether it will have a place in the US marketplace.

Cosmetics
Will the voluntary cosmetic registration and GMP program become mandatory? For years there have been bills introduced in Congress to more tightly regulate the cosmetic industry.  Discussions on Cosmetic Safety Legislation between the FDA and the cosmetic industry broke down in 2014 (http://tinyurl.com/hkmzhg7). Will we see fundamental changes to the way cosmetics are regulated in 2016?

It can be difficult to keep up with all the possible regulatory changes that can affect your day to day operations.  My associates and I work hard to stay abreast of FDA regulations, policies and related issues so we can help you stay compliant. Contact us with your questions and we’ll do our best to keep you up to date on FDA’s activities.

Please use this link http://eepurl.com/Imbjv to subscribe to our occasional email newsletters regarding FDA regulations and other topics of interest to FDA-regulated companies.  We send messages targeted to the dietary supplement, cosmetic, food, OTC drug and medical device industry sectors.  You may subscribe to one or all of the newsletters and you may unsubscribe at any time.

Regards,
Evelyn & Associates
www.FDALabels.com
www.BioTransApp.com

Saturday, November 14, 2015

FDA is finally addressing requests for a definition of “Natural”



The agency has avoided the issue for years but on November 12, 2015 the FDA published a “Request for Information and Comments” on the use of the term “Natural” in the labeling of human food products (http://tinyurl.com/ngvxw9a).  Note that the general term "food" includes dietary supplements. While cosmetics and pet foods are not part of this request for comments, it is highly likely that any definition of “natural” for use in food labeling will influence the labeling of other FDA-regulated products.  

The Federal Register Notice provides a brief history of FDA’s stance on the term “natural” and lists a number of questions the agency would like respondents to the request for information and comments to answer. From the brief history: Three Federal district courts hearing cases on natural labeling for foods containing genetically engineered ingredients and a fourth with a case on natural labeling for high fructose corn syrup have made referrals or requests to FDA for a definition of natural. There have also been several citizen petitions regarding use of the term “natural” in food labeling, including one from Consumers Union that asked the agency to prohibit the use of the term “natural” in food labeling since consumer expectations of the meaning of the term differs so much from how the term is used in the marketplace.

Previously FDA regulations have only defined natural in terms of colors and flavors (21 CFR 101.22).  The agency considers any added color to be artificial even if derived from fruits, vegetables or other natural sources.  (Compare to dyeing hair with henna—even though henna is a plant extract, it still alters the hair’s natural color.) 

According to FDA, natural flavors are substances used to impart flavor that are derived from a spice, fruit or fruit juice, vegetable or vegetable juice, edible yeast, herb, bark, bud, root, leaf or similar plant material, meat, fish, poultry, eggs, dairy products, or fermentation products thereof.
[Note that FDA provides this definition in a backhanded way since 21 CFR 101.22 actually only defines artificial flavors as “any substance, the function of which is to impart flavor, which is not derived from a spice, fruit or fruit juice, vegetable or vegetable juice, edible yeast, herb, bark, bud, root, leaf or similar plant material, meat, fish, poultry, eggs, dairy products, or fermentation products thereof.” The definition of artificial flavor also includes any lab synthesized versions of flavor molecules.  It is interesting to note that European countries allow use of the term ‘natural identical’ for lab-synthesized flavors but FDA deems them artificial.]    

The USDA Food Safety and Inspection Service (FSIS), which oversees the labeling of foods containing meat and poultry, defines a natural food as one that “contains no artificial ingredients and is only minimally processed.”  The FSIS’s Food Standards and Labeling Policy book (see link on this page: http://tinyurl.com/nqbbutn) provides details on the meaning of ‘artificial’ and minimally processed:
(1) the product does not contain any artificial flavor or flavoring, coloring ingredient, or chemical preservative (as defined in 21 CFR 101.22), or any other artificial or synthetic ingredient; and (2) the product and its ingredients are not more than minimally processed. Minimal processing may include: (a) those traditional processes used to make food edible or to preserve it or to make it safe for human consumption, e.g., smoking, roasting, freezing, drying, and fermenting, or (b) those physical processes which do not fundamentally alter the raw product and/or which only separate a whole, intact food into component parts, e.g., grinding meat, separating eggs into albumen and yolk, and pressing fruits to produce juices.

As a matter of policy FDA has stated that they consider natural to mean, “that nothing artificial or synthetic (including colors regardless of source) is included in, or has been added to, the product that would not normally be expected to be there.”  This policy comes from FDA’s 1991 proposed rule for nutrient content claims in which the agency also proposed defining fresh and natural. http://tinyurl.com/odllnwj

While the agency did define fresh (21CFR101.95) they were unable to define “natural” because, “none of the comments provided FDA with a specific direction to follow for developing a definition regarding the use of the term ‘natural.’  Clearly it is up to concerned citizens, including industry and anyone who eats to help FDA arrive at a meaningful definition of “natural”,

The recent request for comments includes a long list of questions FDA has on the topic including, whether the food preparation or manufacturing processes should be considered; whether agricultural practices should be considered and whether genetically engineered foods should be allowed to be labeled as natural. (Scroll down to see FDA’s full list of questions.)

You may submit comments on “natural” labeling by visiting http://tinyurl.com/qdqr9b9). Or if you prefer, send us your comments and we will collate them into a submission to FDA.

Please use this link http://eepurl.com/Imbjv to subscribe to our occasional email newsletters regarding FDA regulations and other topics of interest to FDA-regulated companies.  We send messages targeted to the dietary supplement, cosmetic, food, OTC drug and medical device industry sectors.  You may subscribe to one or all of the newsletters and you may unsubscribe at any time.


All the best to you!
Evelyn & Associates

www.FDALabels.com
www.BioTransApp.com



Here are the questions FDA is seeking input on as they develop a definition for natural in food labeling. (You do not have to address all of the questions in your comments.)
:
• Should we define, through rulemaking, the term ‘‘natural?’’ Why or why not?
• Should we prohibit the term ‘‘natural’’ in food labeling? Why or why not?
• If we define the term ‘‘natural,’’ what types of food should be allowed to bear the term ‘‘natural?’’
• Should only raw agricultural commodities be able to bear the term? Why or why not? Section 201(r) of the FD&C Act defines the term ‘‘raw agricultural commodity’’ as ‘‘any food in its raw or natural state, including all fruits that are washed, colored, or otherwise treated in their unpeeled natural form prior to marketing.’’
• Should only single ingredient foods, e.g., bottled water or bagged spinach, be able to bear the term? Why or why not?
• If multi-ingredient foods should be able to bear the term, what type(s) of ingredients would disqualify the food from bearing the term? Please explain why such disqualification would be warranted.
• We are interested in any data or other information to suggest that consumers associate, confuse, or compare the term ‘‘natural’’ with ‘‘organic’’ (the USDA Agricultural Marketing Service administers the National Organic Program, which enforces laws and regulations regarding certified organic foods). We are interested in data and other information about consumers’ understanding of foods labeled ‘‘natural’’ versus ‘‘organic.’’ Is the term ‘‘natural’’ on food labels perceived by consumers the same way as ‘‘organic?’’ Or is ‘‘natural’’ perceived by consumers to be ‘‘better’’ (or not as good as) ‘‘organic?’’ Please provide consumer research or other evidence to support your comment.
• If we were to revise our policy regarding the use of the term ‘‘natural’’ or engage in rulemaking to establish a regulatory definition for ‘‘natural,’’ should certain production practices used in agriculture, for example, genetic engineering, mutagenesis, hybridization, the use of pesticides, or animal husbandry practices, be a factor in defining ‘‘natural?’’ Why or why not?
• We are interested in any data or other information to suggest that consumers associate, confuse, or compare the term ‘‘natural’’ with ‘‘healthy.’’ We have a regulation that defines the term ‘‘healthy’’ when used as an implied nutrient content claim with specific conditions related to the food’s nutrient profile that must be met in order to use the term on the label or in labeling of a food (see § 101.65(d)). We are interested in data and other information about consumers’ understanding of foods labeled ‘‘natural’’ versus ‘‘healthy.’’ Is the term ‘‘natural’’ on food labels perceived by consumers the same way as ‘‘healthy?’’ Or is ‘‘natural’’ perceived by consumers to be ‘‘better’’ (or not as good as) ‘‘healthy?’’ Do consumers view ‘‘natural’’ and ‘‘healthy’’ as synonymous terms? Please provide consumer research or other evidence to support your comment.
• Should manufacturing processes be considered in determining when a food can bear the term ‘‘natural?’’ For example, should food manufacturing processes, such as drying, salting, marinating, curing, freezing, canning, fermenting, pasteurizing, irradiating, or hydrolysis, be a factor in defining ‘‘natural?’’
• Should the term ‘‘natural’’ only apply to ‘‘unprocessed’’ foods? If so, how should ‘‘unprocessed’’ and ‘‘processed’’ be defined for purposes of bearing the claim? If the term natural should include some processing methods, what should those methods be? In making determinations related to processing, should one look at the process to make a single ingredient of a food, or does one evaluate the process done to the formulated finished food product (or both)?
• The current policy regarding use of the term ‘‘natural’’ hinges in part on the presence or absence of synthetic ingredients. For example, under the current policy synthetic forms of Vitamin D would not be used in a food claiming to be ‘‘natural,’’ whereas naturally sourced Vitamin D (e.g., from salmon or egg yolks) could be. Should the manner in which an ingredient is produced or sourced affect whether a food containing that ingredient may be labeled as ‘‘natural?’’ Please explain your reasoning.
• What can be done to ensure that consumers have a consistent and accurate understanding of the term ‘‘natural’’ in food labeling to ensure that it is not misleading?
• What are the public health benefits, if any, of defining the term ‘‘natural’’ in food labeling? Please provide supporting data and other information to support your comment.
• Should ‘‘natural’’ have some nutritional benefit associated with it? If so, what should be the benefit? What nutrients should be considered? What data are available to support the association between ‘‘natural’’ and a given nutritional benefit, and/or between ‘‘natural’’ and certain nutrients?
• How might we determine whether foods labeled ‘‘natural’’ comply with any criteria for bearing the claim?

Monday, June 1, 2015

Coming soon to a restaurant near you



Menu Labeling Coming to a Restaurant Near You

Many of you know that six months from now, as of December 1, 2015, any restaurant or “similar retail food establishments” (SRFEs) that are part of a chain with 20 or more locations must comply with the new menu labeling regulations.  These regulations require that calorie content be displayed along with pricing on all menus and menu boards for standard menu items as well as on any “food on display” as in restaurants that allow the customer to pick and choose from a range of ingredients such as sandwich or burrito fillings as they direct the assembly of their meal.  Additional nutrition information (fat, carbohydrate, protein, cholesterol, sodium, etc.) must be available upon request. Similar regulations are also coming into effect for vending machines.

FDA wrote these regulations as a result of the passage of the Patient Protection and Affordable Care Act of 2010. The regulations identify the businesses subject to these rules as
1.      Retail establishments that sell “restaurant type food” that is meant to be eaten immediately or taken away for immediate consumption.  This includes concession stands, self-serve salad or hot food bars in grocery stores and all kinds of cafes serving food.
2.      They are part of a chain with 20 or more fixed locations (food trucks do not count).
3.      The covered businesses do business under the same name or as part of the same parent entity, including slight variations in the name.
4.      They offer substantially the same menu items (even with name variations) that use the same general recipe and are prepared in substantially the same way with substantially the same ingredients.
It is important to note that restaurants and SRFEs do not have to provide calorie/nutrition information on items that the patron customizes or for daily specials and condiments.

One of the most interesting requirements of the regulation is that alcoholic beverages that appear on a menu or menu board are included even though they are not otherwise subject to calorie labeling. Beers and other alcoholic beverages may voluntarily list nutritional information on their labels but I have been told by industry insiders many brewers do not even accurately know the amount of alcohol in their products let alone what the calorie content is. (FYI alcohol provides 7 calories per gram—almost as much as fat.).

It is also interesting that states or other localities (cities, counties) may petition the FDA to be exempt from the Federal preemption to their local menu labeling regulations.  Some localities require menu labeling even for establishments with fewer than 20 locations.  In a recent webinar (March 2015) on the topic FDA noted that they had already received a petition for exemption from preemption from the City of Philadelphia.  The regulations also allow for petitions from companies with fewer than 20 that wish to be covered under the regulations and the accompanying inspections of their data. The voluntary registration also allows the restaurants to be subject to FDA’s regulations rather than to local menu labeling regulations.

Speaking of data, the regulations require that the nutrition information provided be accurate.  They also require  a statement certifying that the information contained in the nutrient analysis is complete and accurate  The statement must be signed by signed and dated by a “responsible individual” that is employed at the restaurant (or SRFE),  corporate headquarters or parent entity.  The regulations also require a statement signed and dated by a “responsible individual” employed at the restaurant certifying that the restaurant has taken reasonable steps to ensure that the preparation and amount of food provided conforms to the factors used to determine the nutritional information. In the case of violations fo the requirement to be accurate, the FD&C Act along with the Park Doctrine allow FDA to take enforcement action against the signers of those statements.  How’s that for added pressure for restaurant managers?

The nutritional data can be obtained from nutrient databases, cookbooks, ingredient nutrition facts labels, lab analyses or a combination of these.  Based on my experience working in the food industry, it will be important to have this data checked and double checked.  I also recommend carrying out laboratory analyses on at least a sampling of menu items to check that cookbook and database values enabled accurate calculations.

This brief post cannot begin to touch upon all the requirements and interpretations of the rule in the 104 page Federal Register Notice that was published December 1, 2014 so contact us with any questions you have on the topic.

As always, we hope you find these occasional updates interesting. If so, you may use this link http://eepurl.com/Imbjv to subscribe to our occasional email newsletters regarding FDA regulations and other topics of interest to FDA-regulated companies.  We send messages targeted to the dietary supplement, cosmetic, food, OTC drug and medical device industry sectors.  You may subscribe to one or all of the newsletters and you may unsubscribe at any time. Please post any questions you may have.  My associates and I stand ready to help you with your FDA regulatory issues.

All the best to you!
Evelyn & Associates
www.FDALabels.com
www.BioTransApp.com