Revised Labeling

Revised Labeling Requirements for "Fresh" Raw Poultry Products: The Food Safety and Inspection Service (FSIS) is the public health agency in the U.S. Department of Agriculture (USDA) responsible for ensuring that meat, poultry, and egg products are safe, wholesome, and accurately labeled. In August 1995, FSIS published a final rule to amend the federal poultry products inspection regulations concerning the use of the term "fresh" on the labeling of raw poultry products.

Revised Final Rule: In August 1996, before the final rule was to become effective, Congress directed FSIS to revise some definitions contained in the final rule. Congress let stand the USDA definitions for "fresh" poultry as any raw product that had never been held at a temperature below 26 degrees F, and "frozen" as any poultry product that has been held at a temperature below 0 degrees F. But Congress directed FSIS to drop the required use of the descriptive terms "hard chilled" or "previously hard chilled" and prohibited USDA from requiring any specific similar terms for poultry that has been held at a temperature between 0 and 26 degrees F and thus is hard to the touch.

As a result, FSIS has revised its August 25, 1995 final rule on labeling requirements for raw poultry products to meet new definitions set by Congress. The revised final rule was published in the December 17, 1996, Federal Register and becomes effective 12 months after publication.

Under the revised final rule, the term "fresh" may only be used on raw poultry products whose internal temperature has never fallen below 26 degrees F. To be in compliance with the revised rule, raw poultry products that are labeled as "fresh" but have ever had an internal temperature below 26 degrees F will have to have the "fresh" designation deleted or removed from labeling on the package. The word "fresh" may be deleted by any approved method, including the use of pressure-sensitive stickers.

Consistent with Congress, the final rule also sets a temperature tolerance for raw poultry products. The temperature of individual packages of raw poultry products labeled "fresh" can vary as much as 1 degree below 26 degrees F within inspected establishments or 2 degrees below 26 degrees F in commerce, i.e., outside the inspected establishment.

Background: Previous FSIS policy on fresh labeling, described in Policy Memo No. 022C, dated January 11, 1989, prohibited raw poultry to be labeled as "fresh" if it had been previously frozen at or below 0 degrees F.

In September 1993, the state of California enacted a law restricting the use of the term "fresh" on the labels of poultry products that have been kept at or below 25 degrees F. The law was amended to restrict the use of the term "fresh" on the labels of poultry that has been kept below 26 degrees F. The California law stimulated debate among consumers, industry representatives, producers, and legislators.

In December 1993, three trade associations filed a lawsuit in U.S. District Court in California to prevent the California law from being enforced. They contended, among other things, that the new law was preempted by federal law. The Poultry Products Inspection Act prohibits individual states from imposing labeling requirements that are different from, or in addition to, labeling requirements set by the federal government.

Because of the issues raised by the California law and the litigation that arose in its wake, the Secretary of Agriculture, in February 1994, directed FSIS to reexamine its policy on the use of the term "fresh" on the labeling of raw poultry products.

The Secretary stated that this was necessary to ensure that the policy "is reasonable and meets today's consumer expectations." The Secretary also directed FSIS to make sure that any policy change does not create new problems such as growth of bacteria that could cause foodborne illnesses.

At the request of the District Court, USDA filed a brief on the federal preemption issue. USDA did not take a position on the merits of the California law, and noted that the Secretary had directed a reexamination of USDA's policy on "fresh" in February of 1994.

In April 1994, the federal judge ruled that the labeling provision in the California law was preempted by federal law and permanently enjoined the state from enforcing its law. This decision was substantially affirmed in December 1994.

After a careful review of information provided from public hearings, results of an informal survey of Meat and Poultry Hotline callers, a scientific literature review, U.S. District Court proceedings, and other information, FSIS issued, on January 17, 1995, a proposed rule to redefine the term "fresh" for raw poultry. After evaluating all comments received and other data, FSIS concluded that the term "fresh" should not be used on the labeling of raw poultry products that have been chilled to the point they are hard to the touch.

On August 25, 1995, FSIS issued a final rule that restricted the use of the term "fresh" to products that had been kept at or above 26 degrees F. Raw poultry that had been maintained at an internal temperature between 0 and 26 degrees F could no longer be labeled "fresh" but had to be labeled with either the descriptive term "hard chilled" or "previously hard chilled" in order to inform consumers that the product was subjected to a chilling process that makes the product hard to the touch. The rule did not change the requirement that raw poultry held at a temperature of 0 degrees F or below had to be labeled "frozen" or "previously frozen." The final rule was scheduled to become effective on August 26, 1996.

However, Section 726 of the 1996 Agricultural, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, signed on October 21, 1995, prevented FSIS' final rule on labeling terms for raw poultry to take effect and prohibited FSIS from using any funds appropriated or otherwise made available by the Act to implement or enforce the final rule. On August 8, 1996, Section 732(b) of the 1997 Agricultural, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, instructed the Secretary of Agriculture to issue, within 90 days, a revised final rule that would replace certain specified provisions of FSIS' original final rule with provisions stipulated by Congress. FSIS published the revised final rule in the December 17, 1996, Federal Register with an effective date 12 months after publication.