Use of the Term ``Fresh'' on the Labeling of Raw Poultry Products

SUMMARY: On January 17, 1995, the Food Safety and Inspection Service

(FSIS) proposed to amend the Federal poultry products inspection

regulations to prohibit the use of the term ``fresh'' on the labeling

of raw poultry products whose internal temperature has ever been below

26 deg. F. FSIS is extending the comment period on the proposal for 60

days in order to: Allow time for public review and comment on the

findings of the Agriculture Research Service's (ARS) evaluation of the

sensory, chemical, and physical properties of raw poultry products that

have been exposed to and held at temperatures from 0 deg. F to 40 deg.

F; allow the National Advisory Committee on Microbiological Criteria

for Foods the opportunity to comment on the proposed rule; and solicit

public comments on options for reconciling the FSIS proposal to require

a ``previously frozen'' disclosure on product whose internal

temperature has ever been below 26 deg. F with existing FSIS

regulations that require poultry labeled as ``frozen'' to have been

chilled to an internal temperature of 0 deg. F or below.

DATES: Comments must be received on or before May 19, 1995.

ADDRESSES: Submit written comments in triplicate to Diane Moore, Docket

Clerk, Room 3171, South Building, Food Safety and Inspection Service,

U.S. Department of Agriculture, Washington, DC 20250. Oral comments

should be directed to Mr. Charles R. Edwards, (202) 254-2565.

FOR FURTHER INFORMATION CONTACT: Charles R. Edwards, Director, Product

Assessment Division, Regulatory Programs, Food Safety and Inspection

Service, U.S. Department of Agriculture, Washington, DC 20250, Area

Code (202) 254-2565.

SUPPLEMENTARY INFORMATION: On January 17, 1995, FSIS published a

proposed rule (60 FR 3454) to amend the Federal poultry products

inspection regulations to prohibit the use of the term ``fresh'' on the

labeling of raw poultry products whose internal temperature has ever

been below 26 deg. F. The proposal would require such poultry products

to be labeled with a descriptive term reflecting the fact that the

product had been ``previously frozen.'' The proposed action would help

ensure that poultry products distributed to consumers are not labeled

in a false or misleading manner and are not misbranded. Such action

would also meet consumer expectations that the term ``fresh'' should

not be applied to raw poultry products that have been subjected to

processes that would cause such products to become chilled to

temperatures below 26 deg. F.

Interested persons were given until March 20, 1995, to submit

comments on the proposed regulatory amendments. FSIS has received

requests from two trade associations to extend the comment period for

the proposed rule. The trade associations have requested that FSIS

extend the comment period to allow the public time to obtain and review

the findings of the Agricultural Research Service's (ARS) evaluation of

the sensory, chemical, and physical properties of raw poultry products

that have been exposed to and held at temperatures from 0 deg. F to

40 deg. F, with respect to their written comments on the proposed rule.

The ARS report was not available for public review in the FSIS Docket

Clerk's office at the time the ``fresh'' labeling proposal was

published and, thus, its availability was not stated in the rulemaking

docket. The report is now available for public review in the FSIS

Docket Clerk's office, and FSIS concludes it is reasonable to allow

additional time for interested parties to obtain, review, and comment

on it.

Further, FSIS has previously stated its intention to seek comments

from the National Advisory Committee on Microbiological Criteria for

Foods on the Agency's conclusion stated in the preamble to the proposed

rule that ``there should be no increased microbiological safety risks

associated with the growth of pathogenic microorganisms,'' by changing

the labeling definition for ``fresh'' poultry. The next meeting of the

Committee will be held in mid-April and, thus, an extension of the

comment period is necessary to allow the Committee's views to be

received within the comment period.

Finally, in this notice, FSIS is soliciting comments on options for

reconciling the element of its ``fresh'' labeling proposal that would

require product whose internal temperature has ever been below 26 deg.

F to bear a ``previously frozen'' disclosure with existing FSIS

regulations (9 CFR 381.129(b)(3) and 381.66(f)(2)) that require poultry

labeled as ``frozen'' to have been chilled to an internal temperature

of 0 deg. F or below. Under the proposal, product chilled to an

internal temperature of 0 deg. F or below could be labeled as

``frozen'' or ``previously frozen,'' as the case may be.

FSIS has received a comment noting the conflict between the

proposal and the existing regulatory definition of ``frozen.'' FSIS is

aware that the products directly affected by its ``fresh'' labeling

proposal, which are frequently frozen to temperatures in the range of

20 deg. F to 25 deg. F and sold in a thawed state have different

attributes than product frozen to an internal temperature of 0 deg. F

or below. The product chilled to temperatures in the range of 20 deg. F

to 25 deg. F is hard-to-the-touch and thus ``frozen'' in common

consumer parlance, even though only about 80 percent of the water in

that product is frozen. Further, although the product exhibits a longer

shelf life than product held at higher temperatures, e.g., 28 deg. F to

32 deg. F, the product will spoil in several weeks. In the product

frozen to 0 deg. F or below, over 99 percent of the water in the

product is in a frozen state, microbial growth is stopped, and the

product can last a year or more, depending on packaging and storage

temperature, without discernable quality changes. The purpose of the

existing definition of ``frozen'' is to ensure that poultry products

labeled simply as ``frozen'' would be suitable for long-term storage

and subsequent use. The terms [[Page 14669]] ``frozen,'' as currently

defined in FSIS regulations, and ``previously frozen,'' as proposed by

FSIS for use on poultry products held below 26 deg. F and subsequently

sold in a thawed state, both would provide truthful and useful

information to consumers. FSIS is concerned that the existence of two

definitions which make use of the word ``frozen'' could be confusing to

industry and consumers. FSIS believes that the existing definition and

the Agency's proposed use of the term ``previously frozen'' need to be

reconciled. The Agency invites comments on how this can be

accomplished. FSIS has identified three possible options as follows:

a. Use a term or phrase other than ``previously frozen'' to

identify products in the temperature range from above 0 deg. F to below

26 deg. F. In its proposed rule, FSIS requested comments on other

descriptive terms to describe the nature of the product. However, as of

this time, no satisfactory substitute terms have been suggested. FSIS

has identified other possible terms that do not use the unqualified

word ``frozen.'' Such terms include: ``previously semi-frozen,'' ``held

semi-frozen,'' ``previously partially frozen,'' ``previously chilled to

semi-solid state,'' ``shipped/stored/handled semi-frozen (insert

optional statement, e.g., to preserve quality),'' or ``previously

frosted.'' FSIS continues to be interested in receiving comments on

alternate terms including those that do not contain the unqualified

word ``frozen.''

b. Eliminate the current requirement that poultry products labeled

as ``frozen'' must be brought to an internal temperature of 0 deg. F or

below and require use of the term ``frozen'' to identify all poultry

products whose internal temperature has ever been below 26 deg. F. This

option would eliminate any confusion that might be caused by having

more than one temperature associated with products whose labels make

use of the word ``frozen,'' and satisfy the need to label appropriately

all products that have been chilled to the point where they are hard-

to-the-touch. Such action would in no way prevent manufacturers from

continuing current practices regarding freezing to 0 deg. F for long-

term storage or from making supportable claims about the storage life

or appropriate ``use by'' date for their products. However, such action

might require adjustment in government and industry purchasing

standards, codes of practice, or product specifications that evolved

from the current freezing regulations. FSIS does not believe that

elimination of the 0 deg. F requirement for labeling a product

``frozen'' would pose a safety concern. However, purchasers who expect

that a product was frozen for long-term preservation based on use of

the term ``frozen'' on the labeling might be misled in the absence of

explanatory labeling, if the shelf life and quality differs from

products frozen to 0 deg. F or below because the product was not

actually brought to such low temperatures.

c. Use the proposed term ``previously frozen'' on labeling of

products with internal temperatures above 0 deg. F and below 26 deg. F

but require use of a term other than ``frozen'' or ``previously

frozen'' on the labeling of products that are frozen to 0 deg. F or

below. The latter products could be labeled with a phrase such as

``frozen for long-term preservation'' in order to distinguish them

clearly from chill pack products whose temperatures were at one time in

the lower 20-degree Fahrenheit range. This labeling option

differentiates the two types of frozen products so that the product

labeled ``previously frozen'' would not be confused with the deep-

frozen product. The descriptive term for the 0 deg. F product reflects

the purpose of the processing procedure and can be linked to the

special qualities associated with these products.

FSIS is interested in receiving comments on these options and any

others that would appropriately reconcile the existing definition of

``frozen'' and the proposed use of the term ``previously frozen.''

For all these reasons, FSIS is extending the comment period on its

``fresh'' labeling proposal for 60 days. The comment period will close

May 19, 1995.

Done at Washington, DC, on: March 15, 1995.

Michael R. Taylor,

Acting Under Secretary for Food Safety.

[FR Doc. 95-6817 Filed 3-17-95; 8:45 am]

BILLING CODE 3410-DM-P