Four petitions for policy changes – one from 2016 – have received final rulings from the USDA’s Food Safety and Inspection Service (FSIS).
The oldest petition was from the Animal Welfare Institute (AWI) requesting that the Food Safety and Inspection Service (FSIS) amend the labeling requirements for poultry products to define “free range” and change the substantiation requirements for claim approval.
The three newer petitions came from the People for the Ethical Treatment of Animals (PETA), requesting that FSIS initiate rulemaking to halt the Agency’s review and approval of animal breeding claims on food products; the Environmental Working Group (EWG) petition requesting that FSIS ban the “Low-Carbon Beef” claim recently approved by USDA and require third-party verification of similar carbon claims; and Perdue Farms’ request for additional documentation for FSIS to substantiate label claims such as “pasture-raised,” “pasture-fed,” “pasture-raised” and “pasture-raised.”
The 2022 PETA Petition
The FSIS denied the petition. The agency’s denial letter states the following points:
1. FSIS will not change its regulations as requested in the petition.
2. FSIS will not withdraw its guidance as requested in the petition.
3. FSIS will continue to apply and enforce humane handling standards.
“On August 28, 2024, FSIS posted a Federal Register announcement announcing an updated version of the Animal Breeding Claims Directive. The notice also discussed the petition (the PETA petition),” the denial letter said. “The revised guidance includes several updates to better help companies substantiate animal breeding claims and ensure that such claims align with consumer expectations.”
“For example, the updated guidance strongly encourages the use of third-party certifiers to substantiate animal breeding claims and identifies criteria that ensure a third-party certification organization is credible and reliable. To substantiate “Pasture Raised” and similar claims, the directive now strongly encourages producers to provide FSIS with documentation demonstrating that the products come from animals raised on land most of which is rooted in vegetative cover with grass or other plants for most of their lives, from birth to slaughter.
“Additionally, the revised guideline recommends that institutions for negative antibiotic use claims establish sampling and testing programs or use a third-party certifier. Suppose the facility or a third-party certifier administers a routine sampling program to test for antibiotics. In such a case, FSIS recommends that a description of the sampling program and documentation of the test results be submitted to substantiate the claim.”
The 2023 Perdue Farms Petition
The FSIS partially granted Perdue Farms’ petition. It alleged that FSIS policies regarding “pasture” labeling claims result in unintentional misbranding. As noted in the petition, FSIS policy under the 2019 version of the guidance (84 FR 71359) considered the term “pasture-raised” to be synonymous with “free range.” The petition also alleged that FSIS
The FSIS opined that both terms applied to poultry mean that the birds have “continuous, unobstructed access to the outdoors during their normal growing cycle.” According to the petition, this definition, as applied to “pasture-raised,” is misleading because chickens are not required to spend time on pasture and thus does not reflect consumer expectations of “grass-raised” chickens.
Perdue Farms’ petition drew nineteen overwhelmingly positive responses from poultry and egg producers, advocacy groups, poultry and egg industry groups, members of Congress, and an organic food cooperative. Most commenters supported the distinction between “pasture-raised” and “free-range” and the petition’s proposed standards for the “pasture-raised” claim. “The commenters supporting the petition generally argued that granting the petition would prevent brand abuse, promote fair competition, and better reflect on-farm practices and consumer expectations of the ‘on-pasture’ claim ,” according to FSIS.
The FSIS updated its guidance on “pasture farming” claims in response to the petition. On August 28, 2024, FSIS posted a notice announcing the availability of an updated version of its guidance, the agency said.
“The updated guidance strongly encourages companies to provide additional documentation to FSIS to substantiate label claims such as ‘pasture-raised,’ ‘pasture-fed,’ ‘pasture-raised,’ and ‘pasture-raised.’ Specifically, the Agency now encourages producers, as requested, to provide FSIS with documentation demonstrating that the products are derived from animals raised on land where the majority is rooted in vegetative cover with grass or other plants for the majority of their lifespan, from birth to slaughter. FSIS told Perdue Farms.
The 2016 Animal Welfare Institute petition.
This is also virtually regulated by the recently published new regulations. The Animal Welfare Institute petition specifically requested that FSIS change its regulations to require that all poultry products labeled with a “free-range,” “free-roaming” or “farmed” claim must come from birds raised under certain conditions.
A bird that has access to nature for less than 51 percent of its life due to adverse weather or other conditions should not be labeled with a “free range” or similar claim.
The petition also asked FSIS to require that applications for such claims be accompanied by a signed affidavit, along with the animal care protocol and photographs applicable to all bird raising activities, and that compliance with all conditions described above is documented. Alternatively, the petition asked FSIS to incorporate the changes into the guidelines for animal breeding claims.
FSIS credited the Animal Welfare Institute with bringing to its attention inconsistent information in its previous guidance on specific issues. FSIS responded to the Animal Welfare Institute’s petition three times and obviously found the petition helpful.
In its final response, FSIS said: “The AWI petition alleged that the requested action is necessary because FSIS’s definition of ‘free range,’ which requires only that birds have access to the outdoors, does not reflect consumer expectations and thus can lead to misbranding.
“The petition further alleged that the inadequate definition of FSIS harms farmers whose practices exceed the definition of FSIS. FSIS has decided not to codify AWI’s proposed definition of “free range” or similar claims in its regulations. FSIS asserts that animal production practices vary and are constantly evolving, and that codifying allowable animal breeding claims would be impractical.”
“Codifying definitions for animal breeding claims could also hinder the development of new or improved animal production practices. Producers are constantly innovating their practices to improve livestock and poultry farming from birth to slaughter. Likewise, consumer expectations regarding animal breeding claims are constantly evolving. If animal breeding claims are codified, producers who improve their husbandry practices may lose the benefit of making certain claims, even if the improved practices better reflect consumers’ changing expectations of such claims.”
“Additionally, FSIS believes that it would not be economically feasible for many small and very small businesses to incur the costs of revising their labels to meet the new codified definitions due to their low sales volumes,” continued the latest response from the desk. “FSIS also believes that codifying ‘free-range’ or other animal husbandry claims would limit companies’ adoption of these claims, which would limit the types of products available to consumers. FSIS’s current procedure, which provides a label-by-label review of the producer’s animal production protocol, effectively ensures that “free-range” labels or similar claims are truthful, not misleading, and otherwise compliant with the laws .
The Environmental Working Group’s “Low Carbon” petition
FSIS denied this petition to overturn the new USDA policy.
The April 2023 petition asked FSIS to ban the “Low-Carbon Beef” claim recently approved by USDA, require third-party verification for similar carbon emissions claims, and provide numerical disclosure of carbon emissions on the require packaging when such claims are made.
In a supplemental submission in July 2023, the EWG further requested that FSIS prohibit “climate-friendly” or similar claims on beef products, require third-party verification of such claims, and require numerical disclosure of carbon emissions on packaging when such claims are made.
The EWG argued that many claims about carbon or climate are inherently misleading because there is no such thing as “low-carbon” or “climate-friendly” beef, according to the petition.
Furthermore, EWG stated that many consumers incorrectly assume that such claims reflect reductions in actual greenhouse gas emissions through changes in agricultural practices rather than through carbon offsets.
The EWG also stated that the lack of standard definitions for such claims contributes to consumer confusion and that third-party verification is necessary for such claims as USDA is unable to verify stewardship practices on farms.
FSIS’s denial included the following statements:
1. FSIS will not ban the “Low-Carbon Beef” claim recently approved by USDA.
2. FSIS will not ban all carbon- or climate-related labeling claims.
3. FSIS does not require third-party certification of carbon- or climate-related claims.
FSIS has never approved a “Low-Carbon Beef” claim for use on a meat product label intended for commerce. FSIS will continue to evaluate environmental claims and approve labeling of products under FSIS jurisdiction that is truthful and not misleading and otherwise complies with the Federal Meat Inspection Act (FMIA), Poultry Products Inspection Act (PPIA), Egg Products Inspection Act
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