FSIS delivers the final word on four food safety petitions

Four petitions for policy changes — one from 2016 — have received final rulings from 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 its poultry products labeling regulations to define “free range” and amend the substantiation requirements for approval of the claim.

The three newer petitions were from the People for the Ethical Treatment of Animals (PETA), requesting that FSIS initiate rulemaking to stop the Agency’s review and approval of animal-raising claims on food products; the  Environmental Working Group’s (EWG)  petition requesting that FSIS prohibit the “Low-Carbon Beef” claim recently approved by USDA, and requiring third-party verification for similar carbon claims; and the Perdue Farms request for additional documentation to FSIS to substantiate label claims like “pasture-raised,” “pasture-fed,” “pasture grown,” and “meadow raised.”

The 2022 PETA petition
The FSIS denied the petition. The agency denial letter makes the following points:

1. FSIS will not amend its regulations as requested by the petition.

2. FSIS will not rescind its guidance as requested by the petition.

3. FSIS will continue to administer and enforce humane handling standards.

“On Aug. 28, 2024, FSIS posted a Federal Register notice announcing an updated version of its animal-raising claims guideline. The notice also discussed (the PETA) petition,” the denial letter states. “The revised guideline includes several updates to better assist establishments with substantiating animal-raising claims and help ensure that such claims align with consumer expectations.”

“For example, the updated guideline strongly encourages using third-party certifiers to substantiate animal-raising claims and identifies criteria that ensure a third-party certification organization is credible and reliable. Also, to substantiate “Pasture-Raised” and similar claims, the guideline now strongly encourages producers 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 life span from birth until slaughter. 

“Additionally, for negative antibiotics use claims, the revised guideline recommends that establishments institute sampling and testing programs or utilize a third-party certifier. Suppose the establishment or a third-party certifier administers a routine sampling program to test for antibiotics. In that case, FSIS recommends that a description of the sampling program and documentation of test results be submitted to substantiate the claim.”

 The 2023 Perdue Farms petition
The FSIS has partially granted the Perdue Farms petition. It asserted that FSIS policy regarding “pasture-raised” labeling claims leads to inadvertent misbranding. As noted in the petition, FSIS policy under the 2019 version of the guideline (84 FR 71359) considered the term “pasture-raised” to be synonymous with “free range.” The petition also asserted that FSIS

The FSIS considered both terms applied to poultry to mean that the birds have “continuous, free access to the outside through their normal growing cycle.” According to the petition, this definition, as applied to “pasture-raised,” is misleading because it does not require chickens to spend time on pasture and, thus, does not align with consumer expectations for “pasture-raised” chickens.

The Perdue Farms petition garnered 19 mostly favorable responses from poultry and egg producers, advocacy organizations, poultry and egg industry groups, members of Congress, and an organic food cooperative. Most of the commenters supported differentiating “pasture-raised” from “free range” and the petition’s proposed standards for the “pasture-raised” claim. “The commenters that supported the petition typically argued that granting the petition would prevent misbranding, promote fair competition, and better reflect on-farm practices and consumer expectations for the “pasture-raised” claim,” FSIS said.

The FSIS updated its guidance on “pasture-raised” claims in response to the petition. On August 28, 2024, FSIS posted a notice announcing the availability of an updated version of its guideline, the agency said.

“The updated guideline strongly encourages establishments to provide additional documentation to FSIS to substantiate label claims like “pasture-raised,” “pasture-fed,” “pasture grown,” and “meadow raised.” Specifically, as requested, the Agency now encourages producers 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 most of their life span from birth until slaughter,” FSIS told Perdue Farms.

The 2016 Animal Welfare Institute petition.
This one is also pretty much settled by those recently published new regulations. The Animal Welfare Institute petition specifically requested that FSIS amend its regulations to require that all poultry products labeled with a “free-range,” “free-roaming,” or “range-grown” claim to be derived from birds raised under certain conditions.

A bird having access to the outdoors for less than 51 percent of their life due to adverse weather or other conditions shall not be labeled with a “free-range” or similar type of 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 that apply to all operations where birds are raised, and that compliance with all conditions described above be documented. Alternatively, the petition requested that FSIS incorporate the changes in its animal-raising claims guidance documents.

FSIS credited the Animal Welfare Institute with bringing to its attention some inconsistent information in its past guidance on specific issues. FSIS has responded to the Animal Welfare Institute petition on three occasions, obviously finding the petition useful.

In its final response, FSIS said:  “AWI’s petition asserted that the requested action is necessary because FSIS’ definition of ‘free range,’ which only requires that birds have outdoor access, does not align with consumer expectations and, thus, may lead to misbranding. 

“The petition further asserted that FSIS’ inadequate definition hurts farmers whose practices exceed FSIS’ definition. FSIS has decided not to codify AWI’s proposed definition for “free-range” or similar claims in its regulations. FSIS maintains that animal production practices vary and are continuously developing and that codifying allowable animal-raising claims would be impractical.”

“Codifying definitions for animal-raising claims could also hinder the development of new or improved animal production practices. Producers consistently innovate practices to improve the raising of livestock or poultry from birth to slaughter. Likewise, consumer expectations of animal-raising claims consistently evolve. If animal-raising claims are codified, producers that improve their animal-raising practices could lose the benefit of making certain claims, even if the improved practices better align with changing consumer expectations for such claims.”

“Furthermore, FSIS believes that it would not be economically feasible for many small and very small establishments to incur the cost of revising their labels to meet new codified definitions because of their low sales volumes,” continued the agency’s final response. “FSIS also believes that codifying ‘free-range’ or other animal-raising claims would limit adoption of these claims by establishments, which would limit the types of products available to consumers. FSIS’ current procedure, which provides for label-by-label review of the producer’s animal production protocol, effectively ensures that labels bearing ‘free-range’ or similar claims are truthful, not misleading, and otherwise in compliance with the Acts.”

Environmental Working Group’s “Low Carbon” petition
FSIS has denied this petition request to overturn the new USDA policy.

The April 2023 petition requested that FSIS prohibit the “Low-Carbon Beef” claim recently approved by USDA, require third-party verification for similar carbon claims, and require a numerical on-pack carbon disclosure when such claims are made. 

In an additional 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 a numerical on-pack carbon disclosure when such claims are made. 

The EWG argued that many carbon or climate-related claims are inherently misleading because, according to the petition, there is no “low-carbon” or“climate-friendly” beef. 

Further, EWG stated that many consumers erroneously assume such claims reflect reductions in actual greenhouse gas emissions through changes in farming practices rather than 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, given that USDA lacks the ability to verify on-farm stewardship practices.

FSIS’s denial included the following statements:

1. FSIS will not prohibit the “Low-Carbon Beef” claim recently approved by USDA.

2. FSIS will not prohibit all carbon or climate-related labeling claims.

3. FSIS will 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 environment-related claims and approve labeling of products under FSIS jurisdiction that are truthful, not misleading, and otherwise comply with the Federal Meat Inspection Act (FMIA), Poultry Products Inspection Act (PPIA), Egg Products Inspection Act 

(To sign up for a free subscription to Food Safety News, click here.)