No. 30914 (New Rule): R70-340. False or Misleading Food, Milk and Dairy Product Labels, Labeling and Advertisements

DAR File No.: 30914
Filed: 01/15/2008, 01:08
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this amendment is to clarify what makes a food label, labeling or advertisement to be false or misleading in order to enforce Section 4-3-2, Subsection 4-3-14(5)(b)(vi), and Section 4-5-17.

Summary of the rule or change:

This rule defines false or misleading claims on labels and advertisements regarding food products. These practices are prohibited by statute. The rule defines the practices.

State statutory or constitutional authorization for this rule:

Section 4-3-2, Subsection 4-3-14(5)(vi), and Section 4-5-17

Anticipated cost or savings to:

the state budget:

There will be some impact on the Utah Department of Agriculture and Food's (UDAF) budget. It is expected to be less than $10,000 annually, offset by fees. The aggregate cost should be $0.

local governments:

The rule places no responsibilities on local government. There should be no cost or savings to them.

small businesses and persons other than businesses:

The rule has the potential to increase revenue for food producers who currently do not use false or misleading labels or advertising. The scope of this is not determined but encompasses the vast majority of food producers.

Compliance costs for affected persons:

UDAF will impose a fee to review and approve labels and advertising. The scope will be determined by the number of persons who actually decide to make claims on their food labels and advertising. The typical costs should be less than $100 per label, labeling, or advertisement.

Comments by the department head on the fiscal impact the rule may have on businesses:

The fiscal impact on businesses can be looked at from two perspectives. Currently, food businesses which do not use false or misleading labels and advertising are experiencing sales slumps due to consumers choosing products that may be considered falsely labeled and advertised. Many of these businesses may realize increased revenue because of this rule. The businesses who may currently utilize deceptive food labels and advertising will see reduced revenues because they will have to compete on a level playing field with their competitors. Those businesses wishing to make a claim on their food labels and advertising will have to pay a fee for their material to be reviewed and approved. This is appropriate and will reduce the number of potentially illegal claims made in the marketplace. This is better for consumers and for equity in the marketplace. Leonard Blackham, Commissioner

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Agriculture and Food
Regulatory Services
350 N REDWOOD RD
SALT LAKE CITY UT 84116-3034

Direct questions regarding this rule to:

Richard W Clark, Don McClellan, or Kathleen Mathews at the above address, by phone at 801-538-7150, 801-538-7145, or 801-538-7103, by FAX at 801-538-7126, 801-538-7126, or 801-538-7126, or by Internet E-mail at [e-mail], [e-mail], or [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

03/03/2008

Interested persons may attend a public hearing regarding this rule:

2/26/2008 at 1:00 PM, Department of Agriculture and Food, 350 N Redwood Road, Salt Lake City, UT

This rule may become effective on:

03/10/2008

Authorized by:

Leonard M. Blackham, Commissioner

RULE TEXT

R70. Agriculture and Food, Regulatory Services.

R70-340. False or Misleading Food, Milk and Dairy Product Labels, Labeling and Advertisements.

R70-340-1. Authority.

This rule is promulgated under the authority of Sections 4-3-2, 4-3-14(5)(b)(vi) and 4-5-17, Utah Code.

 

R70-340-2. Definitions.

(1) "Advertisement" means a representation made to induce the purchase of a food, milk or dairy product. This term does not include a representation on a label or labeling.

(2) "Analytical test" means a test that follows the Official Methods of Analysis published by the Association of Official Analytical Chemists.

(3) "Department" means the Utah Department of Agriculture and Food.

(4) "False advertisement" means an advertisement that:

(a) implies that a food, milk or dairy product differs in quality, safety, wholesomeness, or composition from a similar food, milk or dairy product if there is no difference between the products that can be verified by an analytical test;

(b) makes a compositional claim about a food, milk or dairy product that is not verified by an analytical test; or

(c) claims that a specific compound or substance is not present or added in a food, milk or dairy product when the compound or substance is:

(i) naturally present in the food, milk or dairy product, unless the claim is verified by an analytical test;

(ii) not naturally present in the food, milk or dairy product; or

(iii) prohibited from being present in the food, milk or dairy product by statute or rule.

(5) "False or misleading label or labeling" means a label or labeling that:

(a) implies that a food, milk or dairy product differs in quality, safety, wholesomeness, or composition from a similar food, milk or dairy product if there is no difference between the products that can be verified by an analytical test;

(b) makes a compositional claim about a food, milk or dairy product that is not verified by an analytical test; or

(c) claims that a specific compound or substance is not present or added in a food, milk or dairy product when the compound or substance is:

(i) naturally present in the food, milk or dairy product, unless the claim is verified by an analytical test;

(ii) not naturally present in the food, milk or dairy product; or

(iii) prohibited from being present in the food, milk or dairy product by statute or rule.

(6) "Label" means a written, printed, or graphic display on the container or package of a food, milk or dairy product.

(7) "Labeling" means a label and other written, printed or graphic display:

(a) on an article of food, milk or dairy product or its containers or wrappers; or

(b) accompanying the article of food, milk or dairy product.

 

R70-340-3. Unlawful Acts Specified.

(1) A person may not:

(a) manufacture, sell, deliver, hold, or offer for sale a food, milk or dairy product with a false or misleading label or labeling, or

(b) disseminate a false advertisement about a food, milk or dairy product.

(2) Notwithstanding Subsection 3(1), a label, labeling or advertisement that may otherwise be false or misleading may be used if the label, labeling or advertisement includes a statement that the label, labeling or advertisement does not suggest there is a difference between the quality, safety, wholesomeness, or composition of the food, milk or dairy product and another similar food, milk or dairy product offered for sale.

(a) The statement shall be contiguous to and as readable as the claim.

(3) A person who affixes a label or labeling or disseminates an advertisement shall:

(a) maintain a record of the analytical test used to verify a claim on a label, labeling or advertisement; and

(b) have the record available for an inspection by the department.

 

R70-340-4. Department to Review Labels, Labeling and Advertisements.

(1) A person shall submit a label, labeling or an advertisement that makes a claim regarding the quality, safety, wholesomeness, or composition of a food, milk or dairy product to the department and receive the department's approval before:

(a) affixing the label or labeling to the food, milk or dairy product; or

(b) disseminating the advertisement.

(c) A person shall submit the results of an analytical test to verify a claim on a label, labeling or advertisement with the label or advertisement submitted under Subsection 4-1.

(2)(a) The department shall, within 30 days of receiving the label, labeling or advertisement, in writing approve or deny the label, labeling or advertisement.

(b) If the label, labeling or advertisement is not false or misleading and meets all other label, labeling and advertisement requirements, the department shall:

(i) approve the label, labeling or advertisement;

(ii) assign a unique serial number to the approved label, labeling or advertisement; and

(iii) maintain a copy of the approved label, labeling or advertisement, which may be inspected by the public.

(c) If the label, labeling or advertisement is false or misleading in any way, the department shall:

(i) deny approval of the label, labeling or advertisement; and

(ii) include in the written denial:

(A) the basis for the denial; and

(B) notice that the person may request the department to hold an administrative hearing, in compliance with Title 63, Chapter 46b, Administrative Procedures Act, on the denial.

(3) After a person receives approval of a label, labeling or advertisement under Subsection (2), the person may not alter the text, type size, or wording of the label, labeling or advertisement until after the department approves the alteration.

 

R70-340-5. Penalty.

Violations of any portion of this Rule may result in civil penalty of up to $5,000.00 per occurrence, or criminal action, pursuant to Section 4-2-15. In addition, Dairy Permits may be suspended or revoked, citations of up to $500.00 may be issued, and recalls may be initiated to recall all misbranded product(s).

 

KEY: food inspections, food labeling, milk labeling, dairy labeling

Date of Enactment or Last Substantive Amendment: March 10, 2008

Authorizing, and Implemented or Interpreted Law: 4-3-2; 4-3-14(5)(b)(vi); 4-5-17