97-33921. Food Labeling: Nutrient Content Claims, Definition of Term: Healthy  

  • [Federal Register Volume 62, Number 249 (Tuesday, December 30, 1997)]
    [Proposed Rules]
    [Pages 67771-67775]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 97-33921]
    
    
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    DEPARTMENT OF HEALTH AND HUMAN SERVICES
    
    Food and Drug Administration
    
    21 CFR Part 101
    
    [Docket Nos. 91N-384H and 96P-0500]
    RIN 0910-AA19
    
    
    Food Labeling: Nutrient Content Claims, Definition of Term: 
    Healthy
    
    AGENCY: Food and Drug Administration, HHS.
    
    ACTION: Advance notice of proposed rulemaking.
    
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    SUMMARY: The Food and Drug Administration (FDA) is announcing that it 
    is considering whether to institute rulemaking to reevaluate and 
    possibly amend certain provisions of the nutrient content claims 
    regulations pertaining to the use of the term ``healthy.'' This action 
    is in response to a citizen petition from ConAgra, Inc., to amend the 
    definition of this term. The petitioner has raised important issues 
    regarding both the technological feasibility of reductions in sodium 
    levels in foods that currently meet FDA's definition for the term 
    ``healthy'' and the safety of at least some of these foods if there are 
    reductions in their sodium levels. The agency is requesting that data 
    be submitted relative to these issues. In addition, FDA is responding 
    to comments that it received in response to a stay of certain 
    provisions pertaining to the use of the term ``healthy.''
    
    DATES: Written comments by March 16, 1998.
    
    ADDRESSES: Submit written comments to the Dockets Management Branch 
    (HFA-305), Food and Drug Administration, 12420 Parklawn Dr., rm. 1-23, 
    Rockville, MD 20857.
    
    FOR FURTHER INFORMATION CONTACT:  Joyce J. Saltsman, Center for Food 
    Safety and Applied Nutrition (HFS-165), Food and Drug Administration, 
    200 C St. SW., Washington, DC 20204, 202-205-5483.
    
    SUPPLEMENTARY INFORMATION:
    
    I. Background
    
        In the Federal Register of May 10, 1994 (59 FR 24232), FDA 
    published a final rule to establish a definition of the term 
    ``healthy'' under section 403(r) of the Federal Food, Drug, and 
    Cosmetic Act (the act) (21 U.S.C. 343(r)). In that final rule, FDA 
    stated that the fundamental purpose of a ``healthy'' claim is to 
    highlight those foods that, based on their nutrient levels, are 
    particularly useful in constructing a diet that conforms to current 
    dietary guidelines (59 FR 24232 at 24233). In its consideration of 
    comments relative to the proposed qualifying level of sodium to be 
    incorporated into the definition of the term ``healthy,'' the agency 
    rejected comments that suggested that the food should meet the 
    requirements for ``low sodium'' (59 FR 24232 at 24239). The agency 
    stated that such a definition was too restrictive, and that many foods 
    that would otherwise meet the definition of ``healthy'' would be 
    disqualified by a ``low sodium'' requirement. The agency stated that 
    for the claim to be useful, foods that are able to bear the term should 
    be of a sufficient number and variety to help consumers achieve a total 
    diet that is consistent with current dietary recommendations (59 FR 
    24232 at 24239).
        The agency explained that sodium plays an important role in 
    consumer acceptance of a product, and that many products that qualify 
    to bear a claim for ``healthy'' may lose their appeal to consumers 
    because of an unacceptable flavor profile if, in addition to being low 
    in fat and saturated fat, the foods were low in sodium. FDA stated 
    that, if consumers abandon products or add salt to taste at the table, 
    foods bearing the term would lose their usefulness in assisting 
    consumers to achieve dietary recommendations with respect to sodium 
    intake (59 FR 24232 at 24239).
        Based on the comments to the proposed rule for ``healthy'' relative 
    to specific sodium levels, the agency adopted qualifying criteria of 
    360 milligrams (mg) of sodium per reference amount customarily consumed 
    (RACC) in individual foods and 480 mg sodium per RACC in main dish and 
    meal products (59 FR 24232 at 24240). In addition, the agency 
    established a transition period to allow time for industry to 
    reformulate products to meet the new qualifying sodium levels. The 
    agency determined that levels of 480 mg of sodium in individual foods, 
    single ingredient seafood, and game meat, and of 600 mg of sodium in 
    main dishes and meal products, were appropriate levels during the 
    transition period, but that after January 1, 1998 (essentially 3-1/2 
    years from the date of publication of the final rule), these foods 
    would have to meet the lower sodium qualifying levels to bear the claim 
    ``healthy'' (59 FR 24232 at 24241 and 24245 and see 
    Sec. 101.65(d)(2)(ii), (d)(3)(ii), and (d)(4)(ii) (21 CFR 
    101.65(d)(2)(ii), (d)(3)(ii), and (d)(4)(ii))).
        On December 13, 1996, FDA received a petition from ConAgra, Inc. 
    (the petitioner), 888 17th St. NW., suite 300, Washington, DC 20006, 
    requesting that Sec. 101.65(d) be amended to ``eliminate the sliding 
    scale sodium requirement for foods labeled `healthy' by eliminating the 
    entire second tier levels of 360 mg sodium for individual foods and 480 
    mg sodium for meals and main dishes'' (Docket 96P-0500, CP-1, p. 1). 
    Alternatively, the petitioner requested that the effective date of 
    January 1, 1998, in Sec. 101.65(d)(2) through (d)(4) be delayed until 
    such time as food technology catches up with FDA's goals to reduce the 
    sodium content of foods, and until there is a better understanding of 
    the relationship between sodium and hypertension.
        The agency was persuaded by the petition that it is in the public 
    interest to stay the effect of the lower standards for sodium in the 
    definition of ``healthy'' in Sec. 101.65 while the agency endeavors to 
    resolve the issues raised by the petition. Therefore, in the Federal 
    Register of April 1, 1997 (62 FR 15390), FDA published a final rule 
    that stayed, until January 1, 2000, the effective date of January 1, 
    1998, in Sec. 101.65(d)(2)(ii) and (d)(4)(ii) for when foods must 
    achieve the lower sodium levels (the ``second tier levels'') to qualify 
    to bear the term ``healthy.'' The agency said that it was issuing the 
    stay to allow itself time to reevaluate the standard, and to evaluate 
    the data contained in the petition and any additional data that it may 
    receive; to conduct any subsequent notice-and-comment rulemaking that 
    it finds is necessary; and to allow ample time for implementation of 
    the rule or of any changes in the rule that may result from the 
    agency's reevaluation.
    
    [[Page 67772]]
    
     Accordingly, FDA announced that interested persons may submit comments 
    regarding the appropriateness of the basis for the stay and the 
    feasibility of further lowering the sodium level in foods while 
    maintaining consumer acceptability.
        FDA is issuing this advance notice of proposed rulemaking (ANPRM) 
    to respond to the comments that it received in response to the stay and 
    to solicit comments and additional information on whether it should 
    propose to amend the definition of the term ``healthy'' relative to the 
    sodium requirements. Those interested persons that believe that the 
    agency should amend the ``healthy'' definition should address what the 
    amended regulation should require to ensure that the term can appear on 
    a significant number of foods but is not so broadly defined as to lose 
    its value in highlighting foods that are useful in constructing a diet 
    that is consistent with dietary guidelines. Those who believe that the 
    current definition is appropriate and should not be changed should 
    provide data that demonstrate that the definition, with the sodium 
    levels that were scheduled to take effect in January of 1998, is not so 
    restrictive as to effectively preclude use of the term.
    
    II. FDA's Response to Comments on the Stay of Certain Provisions in 
    the Definition of ``Healthy''
    
        FDA received eight comments in response to the stay of the sodium 
    provisions in Sec. 101.65(d)(2)(ii) and (d)(4)(ii) from industry, trade 
    associations, a health care association, and a Federal Government 
    agency. Most of the comments agreed with the agency's decision to stay 
    these provisions until January 1, 2000, to allow the agency time to 
    reevaluate the standard on the basis of available data, including the 
    data contained in the petition and any additional data that the agency 
    may receive.
        Three comments disagreed with the agency's decision to stay the 
    regulations. Two of the comments asserted that to stay the sodium level 
    is a disadvantage to those companies that are ready to produce products 
    that qualify to bear the term ``healthy'' under the stayed provisions. 
    One comment stated that the consumer benefits if companies are prepared 
    and allowed to respond to the opportunity to be one of a few or of 
    several to offer and label foods as ``healthy.'' The other comment 
    stated that many companies have demonstrated their ability and 
    willingness to manufacture products that meet the lower second-tier 
    sodium levels in Sec. 101.65(d)(2)(ii) and (d)(4)(ii). The comment 
    stated that reducing sodium intake is one component of a comprehensive 
    nutritional approach to blood pressure lowering that would benefit many 
    Americans.
        One comment stated that FDA's decision to stay the lower sodium 
    requirements conflicts with the agency's findings in adopting the 
    ``healthy'' final rule in 1994. The comment noted that, in the final 
    ``healthy'' regulation, FDA arrived at the final sodium criteria based 
    on four key findings: (1) The levels will assist consumers in 
    constructing a diet consistent with dietary guidelines; (2) they 
    provide for a reasonable amount of sodium that enables a wide variety 
    of foods to use the ``healthy'' claim without compromising the appeal 
    of the food; (3) the levels are not so restrictive that they are likely 
    to disqualify many foods that are recommended to be included in a 
    healthy diet; and (4) the level ensures consistency with the U.S. 
    Department of Agriculture (USDA). The comment stated that FDA seems 
    willing to ignore its stated public health goals out of concern that 
    certain foods may not be commercially viable at the levels of sodium 
    determined by FDA to be appropriate.
        FDA recognizes that some companies will have reformulated their 
    products to meet the second tier sodium levels in Sec. 101.65(d)(2)(ii) 
    and (d)(4)(ii) by 1998, but it disagrees with the comments that stated 
    that the stay will put these companies at a disadvantage. These 
    companies will be able to make comparative claims that highlight their 
    achievement (e.g., ``25 percent less sodium than Brand X''). As stated 
    in the final rule of April 1, 1997, FDA encourages manufacturers who 
    can meet the lower sodium levels for particular foods to do so even as 
    the agency reevaluates the issues discussed in the petition (62 FR 
    15390 at 15391).
        The agency also disagrees that it is ignoring the basis on which it 
    established the sodium criteria out of concern that certain foods may 
    not be commercially viable at the second-tier sodium levels. The 
    petitioner raised significant questions, based on work that it did 
    after publication of the ``healthy'' final rule, relative to the second 
    of the four key findings noted previously; namely, whether there will 
    be a wide variety of foods that will qualify to use the term 
    ``healthy'' at the second-tier sodium levels that are also acceptable 
    to consumers. Given this fact, but given that the scientific evidence 
    indicates further reductions in fat and sodium intakes will result in 
    meaningful public health gains (62 FR 15390), the agency is staying the 
    second tier levels until it resolves this issue. The agency is 
    concerned that if the technology does not yet exist that permits 
    manufacturers to produce, by January 1, 1998, certain types of reduced 
    sodium foods that are acceptable to consumers, the possibility exits 
    that the term ``healthy'' will disappear from the market. FDA will 
    evaluate the data that it receives on whether the technological 
    barriers to reducing the sodium content to the lower levels required in 
    Sec. 101.65(d)(2)(ii) and (d)(4)(ii), and likewise for 
    Sec. 101.65(d)(3)(ii), are insurmountable or not. The burden is on 
    interested persons to provide convincing evidence to show why the lower 
    sodium levels are not attainable. If they fail to do so, the lower 
    sodium levels will become effective on January 1, 2000.
    
    III. Petition to Amend the Definition of ``Healthy'' and the Agency 
    Response
    
    A. The Petition
    
        The petitioner cited as grounds to amend the definition of 
    ``healthy'': (1) A lack of scientific basis supporting the Daily 
    Reference Value for sodium and the allowable levels of sodium in 
    Sec. 101.65(d); (2) a lack of consumer acceptance of products 
    containing low sodium levels; (3) a lack of acceptable sodium 
    substitutes and the difficulties in manufacturing whole lines of food 
    products at low sodium levels; and (4) FDA's failure to provide notice 
    and comment on the second tier sodium levels in the ``healthy'' 
    definition, to follow directives of the Nutrition Labeling and 
    Education Act of 1990 (the 1990 amendments), and to consider recent 
    scientific studies that raise concerns if too little sodium is consumed 
    (Docket 96P-0500, CP-1, p. 3).
        Relative to the efforts of industry to lower the sodium level of 
    foods, the petitioner stated that the technology does not yet exist to 
    manufacture certain low fat products that both contain the levels of 
    sodium necessary to satisfy the second tier requirements in the 
    ``healthy'' definition and are acceptable to consumers (Docket 96P-
    0500, CP-1, p. 24). The petitioner argued that there is no adequate 
    substitute for sodium chloride as a provider of a salty taste (Docket 
    96P-0500, CP-1, p. 36). In addition, the petitioner stated that salt 
    enhances or modifies all flavors of food, and that flavors are dulled 
    or become harsh when salt is reduced.
        The petitioner submitted the results of a consumer survey that 
    examined consumer acceptance of three products (hot dogs, macaroni and 
    cheese, and chicken soup) with different sodium
    
    [[Page 67773]]
    
    levels (600 mg, 480 mg, and 360 mg sodium per serving) (Docket 96P-
    0500, CP-1, pp. 25 to 28 and exhibit 161). While the results of the 
    survey show reductions in consumer acceptance at levels of 480 mg 
    sodium, a much greater, i.e., a statistically significant, reduction 
    occurred at levels of 360 mg sodium per serving. As stated by the 
    petitioner, ``If the sodium is so low in a product as to render the 
    product tasteless or even bad tasting, consumers will not eat the 
    product or will reach for the table salt. This is counter productive to 
    the intent of the 1990 amendments and will not result in the goal 
    Congress envisioned; i.e., to improve the eating habits of the American 
    public, but instead could result in even more salt intake--not less'' 
    (Docket 96P-0500, CP-1, p.28).
        The petitioner also delineated several technological concerns 
    associated with lowering the sodium levels in foods related to the 
    functional role of salt. For example, the petitioner described the 
    effects of such reductions on the microbial stability of perishable 
    products, on product texture and water binding capacity, on the flavor 
    characteristics of certain ingredients, and on total electrolyte 
    levels, which, the petitioner asserted, play a critical role in product 
    safety (Docket 96P-0500, CP-1, pp. 28 to 30).
        The petitioner explained that a number of novel, proprietary, and 
    known technological approaches to replace or potentiate sodium have 
    been evaluated, but that, to date, none have been found to have 
    suitable consumer acceptance. The petitioner stated that potassium 
    chloride, often cited as capable of increasing salty taste, is also 
    known for leaving a bitter aftertaste and has not gained widespread, 
    satisfactory consumer acceptance (Docket 96P-0500, CP-1, p. 41). The 
    petitioner suggested that to achieve the second-tier sodium levels as 
    defined for ``healthy'' will require the ``invention, development, and 
    commercialization of ingredients or components that do not exist 
    today'' (Docket 96P-0500, CP-1, p. 41).
    
    B. The Agency Response
    
        FDA finds that some of the issues raised in the petition regarding 
    the second tier sodium levels appear to have merit. Others do not.
        The agency does not find merit in the petition's questions 
    regarding the lack of scientific basis for the usefulness of lowered 
    sodium levels in the diet of the general population. There is 
    significant scientific agreement that lower dietary sodium levels 
    reduce the risk of hypertension (Refs. 1 to 7). The overwhelming 
    majority of experts and of authoritative bodies still favors making 
    recommendations for the general public to moderate sodium intake. This 
    consensus is reflected in the Dietary Guidelines for Americans (Ref. 
    8).
        FDA also finds the petitioner's argument that the agency failed to 
    provide notice and comment on the second tier sodium levels in the 
    ``healthy'' definition to be without merit. The revisions in the sodium 
    requirements for individual foods and main dishes and meal products 
    that were adopted in the ``healthy'' final rule were a logical 
    outgrowth of the proposal (59 FR 24232 at 24241). In the proposal, the 
    agency asked for comments for evaluating whether the definition of 
    ``healthy'' that it had proposed (i.e., foods that do not exceed the 
    disclosure level for sodium or cholesterol and are ``low'' in fat and 
    saturated fat) was appropriate (58 FR 2944 at 2947). FDA acknowledged 
    that its proposed definition of the term ``healthy'' differed from the 
    definition for ``healthy'' that was proposed by USDA (i.e., meat or 
    poultry that contain less than 10 grams (g) of fat, less than 4 g of 
    saturated fat, less than 95 mg of cholesterol, and less than 480 mg of 
    sodium per 100 g and per reference amount customarily consumed for 
    individual foods, and per 100 g and labeled serving for meal-type 
    products) (58 FR 688); and FDA asked for comments on whether it was 
    necessary that FDA and USDA provide uniform criteria for use of this 
    term, or whether different definitions would be appropriate (58 FR 2944 
    at 2948). As stated previously, the agency received comments that 
    argued that FDA should adopt levels both lower and higher than those 
    that it proposed and those that it adopted (see 59 FR 24232 at 24238 
    and 24239). FDA considered the information submitted in the comments in 
    arriving at the final levels (see 59 FR 24232 at 24239 to 24241). Thus, 
    the agency provided full and adequate notice of its intent to adopt 
    sodium levels, and the levels that it adopted were the logical 
    outgrowth of the proposal. See Small Refiner Lead Phase-Down Task Force 
    v. USEPA, 70S F.2d 506, 548-550 (D.C. Cir. 1983).
        However, the agency does find that the issues relative to 
    technological and safety concerns of reduced sodium foods present 
    important questions that merit further consideration.
        FDA has defined the term ``healthy'' to serve as a means to help 
    consumers to identify food products that will help them meet the 
    guidelines for a healthy diet. Consumers understand the significance of 
    this term, and thus many make purchasing decisions based on its 
    presence on a food label. Because of this fact, manufacturers have an 
    incentive to produce foods that qualify to bear this term. If the 
    petitioner is correct that the technology does not yet exist that will 
    permit manufacturers, by January 1, 1998, to produce certain types of 
    low fat foods at the lower levels of sodium required in Sec. 101.65(d) 
    that are still acceptable to, and safe for, consumers, then the 
    possibility exists that ``healthy'' will disappear from the market for 
    such foods. This result would force consumers who are interested in 
    foods with restricted fat and sodium levels to choose among foods in 
    which an effort has been made to lower the level of one or the other of 
    these nutrients but not necessarily both. If this situation comes to 
    pass, FDA will have squandered a significant opportunity. Therefore, 
    the agency has decided that, before allowing the new sodium levels for 
    ``healthy'' to go into effect, it needs to explore whether it has 
    created an unattainable standard for many types of foods.
        Accordingly, FDA is considering whether to institute rulemaking to 
    resolve the issues raised by the petition and to reevaluate the sodium 
    provisions of the nutrient content claims regulations pertaining to the 
    use of the term ``healthy.'' In this notice, the agency is asking for 
    data or evidence on what will happen to the use of the term ``healthy'' 
    in the market if the second-tier sodium levels were in effect. How many 
    products that bear the term ``healthy'' would be eliminated? Would 
    there be other impacts on the number of consumer choices?
        The agency is also asking for: (1) Data regarding the technological 
    feasibility of reducing the sodium content of individual foods 
    (including single ingredient seafood and game meats) to 360 mg per RACC 
    and of reducing the sodium content of meals and main dishes to 480 mg 
    sodium per labeled serving, and (2) additional information or views on 
    consumer acceptance of foods with such sodium levels.
        With regard to technological feasibility, the agency is asking for 
    information about the availability or lack of availability of 
    acceptable sodium substitutes, the difficulties in manufacturing 
    different lines of food products with lowered sodium levels, and the 
    impact of these sodium levels on the shelf-life stability and the 
    safety of the food. Are there certain types of foods for which it is 
    not possible to reach the second tier levels of sodium? If so, what are 
    these foods? Should FDA make special exemptions for them, or should FDA 
    exclude them from bearing the term ``healthy?''
         The agency is also asking for comments on other approaches to
    
    [[Page 67774]]
    
    reduce the amount of sodium in foods labeled ``healthy.'' It is 
    important that consumers seeking to eat a health-promoting diet have 
    food choices available that enable them to reduce the amount of sodium 
    in their diet.
        If the comments reveal that agreement exists that there are 
    technological hurdles that cannot be overcome at this time for all 
    foods, or certain types of food, the agency is interested in exploring 
    options for maximizing the public health gains that would come from 
    reducing dietary sodium levels. To this end, the agency has identified 
    the following four options that seem to represent the available 
    alternatives.
        One, the agency may make no changes to the stayed rule, and the 
    second tier sodium levels in Sec. 101.65(d)(2)(ii) and (d)(4)(ii) will 
    become effective on January 1, 2000. This is the default option should 
    the industry fail to provide evidence, data, or arguments that support 
    amendment of these sections. Adequate support for these levels existed 
    at the time FDA published the May 10, 1994, final rule; and the agency 
    will not hesitate to reconfirm them in the event that the industry 
    fails to provide evidence to persuade FDA to do otherwise.
        Two, FDA can propose to amend the definition of ``healthy'' in 
    Sec. 101.65(d)(2)(ii) and (d)(4)(ii) as requested in the petition, and, 
    at the same time, propose to amend Sec. 101.65(d)(3)(ii), to make the 
    current sodium levels for individual foods, single ingredient seafood 
    and game meats, main dishes, and meal products the qualifying levels 
    and to delete Sec. 101.65(d)(2)(ii)(C)(1) and (d)(2)(ii)(C)(2), 
    (d)(3)(ii)(C)(1) and (d)(3)(ii)(C)(2), and (d)(4)(ii)(B) in their 
    entirety. FDA is likely to propose this option should the evidence 
    submitted in response to this ANPRM demonstrate that it is 
    technologically impossible to find salt substitutes for use in any type 
    of food that would satisfactorily meet the requirements for taste, 
    texture, safety, and consumer acceptance. However, persons who support 
    this course would have to provide evidence on the efforts that they or 
    others have made to comply with the second tier sodium levels, and they 
    would have to provide a persuasive explanation as to why these 
    reductions in sodium levels are not attainable.
        Three, if data and information submitted in response to this ANPRM 
    suggest that technological advancements could be made but would require 
    more time than provided in the stay of the effective date for the tier 
    two sodium reductions (i.e., January 1, 2000, see 62 FR 15390), the 
    agency would consider continuing the stay of the effective date of 
    Sec. 101.65(d)(2) and (d)(4) for an appropriate period of time. To 
    support this option, FDA would expect to receive information 
    demonstrating that progress is being made in the reformulation of 
    ``healthy'' products, as well as information that provides an estimate 
    of how much additional time is needed and that establishes the 
    reasonableness of this estimate.
        Four, the agency could reconsider the sodium levels that it has 
    established as the second tier of the ``healthy'' definition. For 
    example, one possibility might be that an individual food would have to 
    contain 360 mg sodium or less per RACC, or at least 25 percent less 
    sodium per RACC than a market basket norm, so long as the final sodium 
    level does not exceed 480 mg per RACC. For both main dish and meal 
    products, the agency might consider the use of a percent reduction from 
    the disclosure level for main dishes (720 mg sodium) or a percent 
    reduction from the market basket norm. If a 25 percent reduction from 
    the disclosure level of 720 mg were applied, the sodium level per 
    labeled serving for main dishes and meals would be 540 mg (720 mg times 
    0.25 equals 180, and 720 mg minus 180 mg equals 540 mg).
        If the definition is set at the reasonably achievable level of a 25 
    percent reduction from the disclosure level or from the market basket 
    norm, more foods are likely to be available, and consumers will be able 
    to select from more and different foods to meet dietary guidelines. 
    Furthermore, market competition may spur some manufacturers to exceed 
    this minimal reduction, thereby resulting in foods with even greater 
    reductions. On the other hand, the question that must be considered is 
    whether a 25 percent reduction from the disclosure level or market 
    basket norm is of adequate dietary significance to warrant use of the 
    term ``healthy.''
        Based on the foregoing, the agency requests comments on whether it 
    should institute rulemaking to reevaluate the sodium provisions of the 
    nutrient content claims regulations pertaining to the use of the term 
    ``healthy'' and on the other issues raised by the petition.
    
    IV. Executive Order 12866 Analysis
    
        If any rulemaking is proposed as a result of comments received to 
    this ANPRM, FDA will examine the economic implications of the proposed 
    rule as required by Executive Order 12866, which directs agencies to 
    assess all costs and benefits of available regulatory alternatives. 
    Executive Order 12866 classifies a rule as significant if it meets any 
    one of a number of specified conditions, including having an annual 
    effect on the economy of $100 million or adversely affecting in a 
    material way a sector of the economy, competition, or jobs, or if it 
    raises novel legal or policy issues.
        If FDA institutes rulemaking, the agency will examine the potential 
    costs of the proposed rule, including but not limited to label redesign 
    costs, product reformulation costs, and potential loss of product or 
    product name. FDA will also examine potential benefits including 
    improved access to information regarding the health effects of 
    particular foods. FDA requests information that would aid the agency in 
    responding to the Executive Order.
    
    V. Regulatory Flexibility Analysis
    
        If a rule has a significant impact on a substantial number of small 
    entities, the Regulatory Flexibility Act (5 U.S.C. 601-612) requires 
    agencies to analyze options that would minimize the economic impact of 
    that rule on small entities. According to the Regulatory Flexibility 
    Act, the definition of a small entity is a business independently owned 
    and operated and not dominant in its field. The Small Business 
    Administration (SBA) has set size standards for most business 
    categories through use of four-digit Standard Industrial Classification 
    codes. For most processed foods, SBA considers any entity with fewer 
    than 500 employees to be small. FDA requests information on the number 
    of small entities that use the term ``healthy'' in the labeling of 
    their products. FDA also requests information regarding the impact on 
    small entities of the four options which FDA has identified and 
    described in section III.B of this document. Specifically, FDA is 
    interested in how each option may impact on a small entity's viability.
    
    VI. Comments
    
        Interested persons may, on or before March 16, 1998, submit to the 
    Dockets Management Branch (address above) written comments regarding 
    this ANPRM. Two copies of any comments are to be submitted, except that 
    individuals may submit one copy. Comments are to be identified with the 
    docket number found in brackets in the heading of this document. 
    Received comments may be seen in the office above between 9 a.m. and 4 
    p.m., Monday through Friday.
    
    VII. References
    
        The following references have been placed on display in the Dockets 
    Management Branch (address above) and may be seen by interested persons
    
    [[Page 67775]]
    
    between 9 a.m. and 4 p.m., Monday through Friday.
        1. DHHS, Public Health Service (PHS), ``The Surgeon General's 
    Report on Nutrition and Health,'' U.S. Government Printing Office, 
    Washington, DC, pp. 139 to 143, 157 to 161, 165, and 167 to 174, 
    1988.
        2. FNB/NAS, Diet and Health, National Academy Press, Washington, 
    DC, pp. 355 to 356, 549 to 553 and 556 to 561, 1989.
        3. Joint National Committee on Detection, Evaluation, and 
    Treatment of High Blood Pressure, ``The Fifth Report of the Joint 
    National Committee on Detection, Evaluation, and Treatment of High 
    Blood Pressure,'' Archives of Internal Medicine, 153:154 to 183, 
    1993.
        4. Nutrition Committee, American Heart Association, ``Dietary 
    Guidelines for Healthy American Adults--A Statement for Health 
    Professionals from the Nutrition Committee, American Heart 
    Association,'' Circulation, 94:1795 to 1800, 1996.
        5. LSRO, ``Evaluation of Publicly Available Scientific Evidence 
    Regarding Certain Nutrient-Disease Relationships, 4. Sodium and 
    Hypertension,'' Bethesda, MD, December 1991.
        6. FNB, National Research Council, ``Recommended Dietary 
    Allowances,'' 10th ed., National Academy Press, Washington, DC, pp. 
    247-261, 1989.
        7. USDA, DHHS, ``Report of the Dietary Guidelines Advisory 
    Committee on the Dietary Guidelines for Americans,'' USDA, 
    Washington, DC, 1995.
        8. USDA, DHHS, ``Nutrition and Your Health: Dietary Guidelines 
    for Americans,'' 4th ed., Home and Garden Bulletin No. 232, 1995.
    
        Dated: December 10, 1997.
    William B. Schultz,
    Deputy Commissioner for Policy.
    [FR Doc. 97-33921 Filed 12-29-97; 8:45 am]
    BILLING CODE 4160-01-F
    
    
    

Document Information

Published:
12/30/1997
Department:
Food and Drug Administration
Entry Type:
Proposed Rule
Action:
Advance notice of proposed rulemaking.
Document Number:
97-33921
Dates:
Written comments by March 16, 1998.
Pages:
67771-67775 (5 pages)
Docket Numbers:
Docket Nos. 91N-384H and 96P-0500
RINs:
0910-AA19: Food Labeling Review
RIN Links:
https://www.federalregister.gov/regulations/0910-AA19/food-labeling-review
PDF File:
97-33921.pdf
CFR: (4)
21 CFR 101.65(d)
21 CFR 101.65(d)(2)
21 CFR 101.65(d)(2)(ii)
21 CFR 101.65(d)(3)(ii)