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October 2006
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http://www.cfsan.fda.gov/guidance.html
U.S. Department of Health and Human Services
Food and Drug Administration
Center for Food Safety and Applied Nutrition
October 2006
As originally enacted in 1938, section 403(i) of the Federal Food, Drug, and Cosmetic Act required that the label of a food that is fabricated from two or more ingredients declare each ingredient by its common or usual name (except that spices, flavorings, and colors could be declared as a class.) Although ingredient declarations complying with section 403(i) provide some information to food allergic consumers, in some cases, the common or usual name of an ingredient may be unfamiliar to consumers and many consumers do not recognize that certain ingredients contain or are derived from a food allergen. This situation led, at least in part, to the enactment of the Food Allergen Labeling and Consumer Protection Act of 2004 (FALCPA) (Pub. L. 108-282).
This is a revision of the third edition of a guidance document that contains questions and answers relating to food allergens, including questions and answers about the Food Allergen Labeling and Consumer Protection Act. FDA expects to continue to issue subsequent editions of this guidance document by adding new questions and answers to the guidance; new questions and answers will be identified by the date that they are added to the guidance.
FDA's guidance documents, including this document, do not establish legally enforceable responsibilities. Instead, guidance documents describe the Agency's current thinking on a topic and should be viewed only as recommendations, unless specific regulatory or statutory requirements are cited. The use of the word should in Agency guidance means that something is suggested or recommended, but not required.
The Food Allergen Labeling and Consumer Protection Act of 2004 (FALCPA) (Public Law 108-282) was enacted in August 2004, and addresses, among other issues, the labeling of foods that contain certain food allergens.
All packaged foods regulated under the Federal Food, Drug, and Cosmetic Act (FFD&C Act) that are labeled on or after January 1, 2006, must comply with FALCPA's food allergen labeling requirements.
No. FALCPA does not require any action with respect to products labeled before January 1, 2006.
Under FALCPA, a "major food allergen" is an ingredient that is one of the following five foods or from one of the following three food groups or is an ingredient that contains protein derived from one of the following:
Yes. FALCPA requires that in the case of tree nuts, the specific type of nut must be declared (e.g., almonds, pecans, or walnuts). The species must be declared for fish (e.g., bass, flounder, or cod) and Crustacean shellfish (crab, lobster, or shrimp).
Congress designated eight foods or food groups as "major food allergens." These foods or food groups account for 90 percent of all food allergies. Although there are other foods to which sensitive individuals may react, the labels of packaged foods containing these other allergens are not required to be in compliance with FALCPA.
FALCPA's requirements apply to all packaged foods sold in the U.S. that are regulated under the Federal Food, Drug, & Cosmetic Act, including both domestically manufactured and imported foods. FDA regulates all foods except meat products, poultry products, and egg products.
No. Raw agricultural commodities such as fresh fruits and vegetables in their natural state are not affected by FALCPA.
FALCPA's requirements apply only to those foods regulated by the Food and Drug Administration under the FFD&C Act. We recommend that producers of meat products, poultry products, and egg products regulated by USDA contact the appropriate USDA agency regarding the labeling of such products.
Yes. "Soybean," "soy," and "soya" are reasonable synonyms for the common or usual name "soybeans," and any one of these terms may be used to identify the food source of the major food allergen "soybeans."
Packaged foods that are made using soybeans as an ingredient or as a component of a multi-component ingredient (e.g., soy sauce or tofu) should continue to use the word "soybeans" as the appropriate common or usual name for this ingredient to identify properly the ingredient (e.g., "soy sauce (water, wheat, soybeans, salt)").
Yes. FDA believes that "peanut" is an acceptable substitute for "peanuts" and that the names of the different types of tree nuts may be expressed in either the singular or plural form for the purpose of satisfying the FALCPA labeling requirements.
No. If a "Contains" statement is used on a food label, the statement must include the names of the food sources of all major food allergens used as ingredients in the packaged food. For example, if "sodium caseinate," "whey," "egg yolks," and "natural peanut flavor" are declared in a product's ingredients list, any "Contains" statement appearing on the label immediately after or adjacent to that statement is required to identify all three sources of the major food allergens present (e.g., "Contains milk, egg, peanuts") in the same type (i.e., print or font) size as that used for the ingredient list..
Yes. The wording for a "Contains" statement may be limited to just stating the word "Contains" followed by the names of the food sources of all major food allergens that either are or are contained in ingredients used to make the packaged product. Alternatively, additional wording may be used for a "Contains" statement to more accurately describe the presence of any major food allergens, provided that the following three conditions are met:
Yes. A company and its management may be subject to civil sanctions, criminal penalties, or both under the Federal Food, Drug, and Cosmetic Act if one of its packaged food products does not comply with the FALCPA labeling requirements. FDA may also request seizure of food products where the label of the product does not conform to FALCPA's requirements. In addition, FDA is likely to request that a food product containing an undeclared allergen be recalled by the manufacturer or distributor.
No. FALCPA does not address the use of advisory labeling, including statements describing the potential presence of unintentional ingredients in food products resulting from the food manufacturing process. FALCPA does require FDA to submit a report to Congress, a part of which assesses the use of, and consumer preferences about, advisory labeling. In earlier guidance, FDA advised that advisory labeling such as "may contain [allergen]" should not be used as a substitute for adherence to current Good Manufacturing Practices (cGMPs). In addition, any advisory statement such as "may contain [allergen]" must be truthful and not misleading.
FALCPA does not require FDA to establish a threshold level for any food allergen. It is not unlikely, however, that FDA will at some point need to consider a threshold level for one or more food allergens in the context of reviewing a petition or a notification submitted to request that an ingredient be exempt from FALCPA's labeling requirements.
No. FALCPA's labeling requirements do not apply to major food allergens that are unintentionally added to a food as the result of cross-contact. In the context of food allergens, "cross-contact " occurs when a residue or other trace amount of an allergenic food is unintentionally incorporated into another food that is not intended to contain that allergenic food. Cross-contact may result from customary methods of growing and harvesting crops, as well as from the use of shared storage, transportation, or production equipment.
FDA's Food Code is a model code available for adoption by local, state, and other jurisdictions to apply to all food establishments at the retail level that provide food directly to consumers, including: restaurants, grocery stores, supermarkets, hospitals, nursing homes, child care centers, and temporary food establishments.
The following new food allergen information has been added to the 2005 Food Code:
FALCPA's labeling requirements extend to foods packaged by a retail or foodservice establishment that are offered for human consumption. However, FALCPA's labeling requirements do not apply to foods provided by a retail food establishment that are placed in a wrapper or container in response to a consumer's order - such as the paper or box used to convey a sandwich that has been prepared in response to a consumer's order.
Yes. Although the 2005 FDA Food Code contains provisions to integrate FALCPA's requirements into the model code as well as additional food allergen information in its Annexes, FALCPA is a federal law that amends the Federal Food, Drug, & Cosmetic Act (FFDCA). Thus, regardless of whether a jurisdiction has adopted the 2005 Food Code, FALCPA's requirements apply to all packaged foods in interstate commerce, both domestically manufactured and imported, sold in the U.S. that are regulated under the FFDCA. FDA regulates all foods except meat products, poultry products, and certain egg products. FALCPA is specifically preemptive, which means that other governmental entities (such as those at the state or local level) may not adopt labeling requirements that are different from those in FALCPA.
No. FALCPA does not address the use of advisory labeling, including statements describing the potential presence of unintentional ingredients in food products resulting from the manufacturing of the ingredients or the preparation and packaging of the food in a retail or food service establishment. All food labeling, including advisory labeling, must be truthful and not misleading. See FDA's 1996 Notice to Manufacturers.
No. Under FALCPA, Crustacean shellfish (such as crab, lobster, or shrimp), and ingredients that contain protein derived from Crustacean shellfish, are major food allergens, but molluscan shellfish (such as oysters, clams, mussels, or scallops) are not.
As stipulated in FALCPA, FDA is engaged in an on-going effort to work with the Conference for Food Protection on the development of guidelines for retail and foodservice establishments on the proper handling and labeling of food allergens.
The following are considered "tree nuts" for purposes of section 201(qq). The name listed as "common or usual name" should be used to declare the specific type of nut as required by section 403(w)(2).
Common or usual name |
Scientific name |
---|---|
Almond | Prunus dulcis (Rosaceae) |
Beech nut | Fagus spp. (Fagaceae) |
Brazil nut | Bertholletia excelsa (Lecythidaceae) |
Butternut | Juglans cinerea (Juglandaceae) |
Cashew | Anacardium occidentale (Anacardiaceae) |
Chestnut (Chinese, American, European, Seguin) |
Castanea spp. (Fagaceae) |
Chinquapin | Castanea pumila (Fagaceae) |
Coconut | Cocos nucifera L. (Arecaceae (alt. Palmae)) |
Filbert/hazelnut | Corylus spp. (Betulaceae) |
Ginko nut | Ginkgo biloba L. (Ginkgoaceae) |
Hickory nut | Carya spp. (Juglandaceae) |
Lichee nut | Litchi chinensis Sonn. Sapindaceae |
Macadamia nut/Bush nut | Macadamia spp. (Proteaceae) |
Pecan | Carya illinoensis (Juglandaceae) |
Pine nut/Pinon nut | Pinus spp. (Pineaceae) |
Pili nut | Canarium ovatum Engl. in A. DC. (Burseraceae) |
Pistachio | Pistacia vera L. (Anacardiaceae) |
Sheanut | Vitellaria paradoxa C.F. Gaertn. (Sapotaceae) |
Walnut ( English, Persian, Black, Japanese, California), Heartnut, Butternut |
Juglans spp. (Juglandaceae) |
The foregoing list reflects FDA's current best judgment as to those nuts that are "tree nuts" within the meaning of section 201(qq). In order to be comprehensive, this list employs broad scientific categories that may include a species that currently has no food use. The fact that a species falls within a scientific category on this list does not mean that the species is appropriate for food use. FDA further advises that, as with any guidance, the list may be revised consistent with the process for revising guidance documents in our regulation on good guidance practices in 21 CFR 10.115.
A declaration of the "species" of fish or Crustacean shellfish for purposes of complying with section 403(w)(2) should be made using the acceptable market name provided in FDA's Seafood List. FDA's Seafood List is a compilation of existing acceptable market names for imported and domestically available seafood. The list is available at http://www.cfsan.fda.gov/~frf/seaintro.html .
The term "wheat" in section 201(qq) means any species in the genus Triticum. Thus, for the purposes of section 201(qq), wheat would include grains such as common wheat (Triticum aestivum L.), durum wheat (Triticum durum Desf.), club wheat (Triticum compactum Host.), spelt (Triticum spelta L.), semolina (Triticum durum Desf.), Einkorn (Triticum monococcum L. subsp. monococcum ), emmer (Triticum turgidum L. subsp. dicoccon (Schrank) Thell.), kamut (Triticum polonicum L.), and triticale ( x Triticosecale ssp. Wittm.).
Yes. Single ingredient foods must comply with the allergen declaration requirements in section 403(w)(1). A single ingredient food that is, or contains protein derived from milk, egg, fish, Crustacean shellfish, tree nuts, wheat, peanuts, or soybeans, may identify the food source in the name of the food (e.g., "all-purpose wheat flour") or use the "Contains" statement format. FDA recommends that if a "Contains" statement format is used, the statement be placed immediately above the manufacturer, packer, or distributor statement. For single ingredient foods intended for further manufacturing where the "Contains" statement format is used, the statement should be placed on the principal display panel of the food.
* This is a revision of the third edition of the FDA guidance "Questions and Answers Regarding Food Allergens, including the Food Allergen Labeling and Consumer Protection Act of 2004 ," which FDA issued on April 6, 2006.