Loyola University Chicago School of Law, JD 2024
The United States Department of Agriculture (USDA) and Food Safety and Inspection Service (FSIS) has loosened the approval for labels on meat, poultry, and egg products. By March 2023, the process for approval of certain labels on certain food products will essentially be discontinued under the Expansion of Generic Labeling Rule.
Which labels are no longer being scrutinized?
Under 9 CFR 317.8, labeling regulations under the FSIS contain provisions to ensure that, “no statement, word, picture, design, or device that is false or misleading in any particular, or that conveys any false impression, or that gives any false indication of origin, identity, or quality, appears in any marking or other labeling”.
The food labels that will be generically approved moving forward include “organic” claims for a single ingredient, “negative” or “free of” claims (statements such as “dairy free”, “gluten free”, “no MSG added” or “made without preservatives”). This loosening of regulation will result in companies being able to legally market meat, poultry, and egg products without submitting product labels to FSIS for approval. This does not change record-keeping requirements of companies.
Under current regulations, the FSIS has been evaluating companies’ sketches for labels that mark food products as dairy free, using an organic ingredient, etc. Currently, the FSIS has been generically approving some labels on food products provided that they conform to FSIS rules. Under this new law, the approval process for label regulations for the above-mentioned terms will be eliminated.
How will compliance be enforced?
This new rule does not eliminate companies’ requirement to comply with the USDA’s labeling regulation, rather it shifts the burden of compliance onto the companies. Instead of the FSIS approving all label sketches for these foods, manufacturers will instead have the opportunity to use labels that fall within USDA guidelines. Generic label approval will still require that mandatory label features are present and conspicuous on food products to keep consumers informed.
Companies that apply generically approved labels without agency approval will have the independent responsibility of ensuring that all other required label features are present, such as ingredient list, company address, net weight, country of origin, etc.
Is this cause for concern?
This loosening of government regulation on food companies could potentially be troubling for some consumers. This new rule will effectively force consumers to trust companies to ensure their own compliance with the government. The vast majority of Americans simply rely on the accuracy of the labels on food products we purchase, as opposed to conducting our own research into the products which would be time consuming and often very difficult. Given the trust that most Americans have regarding labels being accurate and truthful, this new rule, which in many ways makes it less likely that labels will be accurate, seems to be counterintuitive to consumers interests.
With that being said, this change in regulation is not an invitation for companies to lie on their product labels. Their actual products will still be scrutinized by the USDA, and they won’t have a free pass to conceal anything they want in their products. It is just that certain labels that will face lesser scrutiny by the FSIS, which does give companies more creative freedom in labeling their products which could mislead consumers.
The Office of Inspector General (OIG) has played a significant a role in ensuring the integrity of the FSIS. After the FSIS reported a high industry compliance with labeling regulations, the OIG audited the FSIS and found that out of 878 voluntarily submitted generic labels that the FSIS previously reviewed for approval, the FSIS requested that 74% of the labels be changed in some way. While it is unknown how severe the errors on these labels were, this statistic suggests that companies are not completely in tune with the labeling requirements for their products.
This expansion of generic labeling approval is the third time since the 1980s that categories of foods have been released from FSIS scrutiny. This trend in loosening government approval for our food product labels will likely not change as there have been no major federal pushbacks to the release of this most recent expansion. It is unclear what the motivation for these expansions is, but the trend of loosening federal regulations on private companies in America does require consumers to be more aware of the companies they give business to.