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Food Labeling: Revision of the Nutrition and Supplement Facts Labels

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Start Preamble Start Printed Page 33742

AGENCY:

Food and Drug Administration, HHS.

ACTION:

Final rule.

SUMMARY:

The Food and Drug Administration (FDA or we) is amending its labeling regulations for conventional foods and dietary supplements to provide updated nutrition information on the label to assist consumers in maintaining healthy dietary practices. The updated information is consistent with current data on the associations between nutrients and chronic diseases, health-related conditions, physiological endpoints, and/or maintaining a healthy dietary pattern that reflects current public health conditions in the United States, and corresponds to new information on consumer understanding and consumption patterns. The final rule updates the list of nutrients that are required or permitted to be declared; provides updated Daily Reference Values and Reference Daily Intake values that are based on current dietary recommendations from consensus reports; amends requirements for foods represented or purported to be specifically for children under the age of 4 years and pregnant and lactating women and establishes nutrient reference values specifically for these population subgroups; and revises the format and appearance of the Nutrition Facts label.

DATES:

Effective date: The final rule becomes effective on July 26, 2016. Compliance date: The compliance date of this final rule is July 26, 2018 for manufacturers with $10 million or more in annual food sales and July 26, 2019 for manufacturers with less than $10 million in annual food sales. See section III, Effective and Compliance Dates, for more detail. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of July 26, 2016.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

Blakeley Fitzpatrick, Center for Food Safety and Applied Nutrition (HFS-830), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 240-402-5429, email: NutritionProgramStaff@fda.hhs.gov.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

Table of Contents

Executive Summary

Purpose of the Regulatory Action

Summary of the Major Provisions of the Regulatory Action in Question

Costs and Benefits

I. Background

A. Legal Authority

B. Need To Update the Nutrition Facts and Supplement Facts Labels

II. Comments to the Proposed Rule and the Supplemental Proposed Rule, Our Responses, and a Description of the Final Rule

A. Introduction

B. General Comments

1. Comments Seeking an Education Campaign or Program

2. Comments Linking the Nutrition Facts Label to Specific Diseases

3. Use of Household Measures

4. Impact on Other Regulations

5. Consumer Research

C. Comments on Legal Issues

1. First Amendment

2. Administrative Procedure Act

3. Federal Food, Drug, and Cosmetic Act

4. Recordkeeping Authority

5. Miscellaneous Comments

D. Factors for Mandatory or Voluntary Declaration of Non-Statutory Nutrients

E. Calories

1. Calories From Fat

2. Calories From Saturated Fat

3. Two Thousand Calories as the Reference Caloric Intake Level

4. Percent DV Declaration for Calories

F. Fat

1. Total Fat

a. Definition

b. Mandatory Declaration

c. DRV

d. Declaration of Total Fat

2. Saturated Fat

a. Definition

b. Mandatory Declaration

c. DRV

3. Trans Fat

a. Definition

b. Mandatory Declaration

c. DRV

d. Declaring the Amount of Trans Fat

4. Monounsaturated Fat and Polyunsaturated Fat

a. Voluntary Declaration

b. DRV

c. Declaration of Individual Polyunsaturated Fatty Acids

G. Cholesterol

1. Mandatory Declaration

2. DRV

H. Carbohydrate

1. Total Carbohydrate

a. Calculation of Total Carbohydrate

b. Classification of Carbohydrates Based on a Chemical Definition or Physiological Effect

c. Separate Declaration of Additional Individual Types of Carbohydrates

d. Mandatory Declaration

e. DRV

f. How Total Carbohydrates Appears on the Label

g. Calculation of Calories From Carbohydrate

2. Sugars

a. Definition

b. Mandatory Declaration

c. Changing “Sugars” to “Total Sugars”

d. DRV

e. Seasonal Variation in Sugars Content

3. Added Sugars

a. Declaration

(i) Comments on the Rationale for Requiring Mandatory Declaration of Added Sugars

(ii) Evidence on Added Sugars and Risk of Chronic Disease

(iii) New Evidence Presented in the 2015 DGAC Report

b. The 2015 DGAC Analysis of Dietary Patterns and Health Outcomes

c. Authority for Labeling

(i) Statutory Authority

(ii) Material Fact

(iii) Regulations Must Bear a Reasonable Relationship to the Requirements and Purposes of the Statue

d. Nutrient Density

e. Reformulation

f. Calories from Solid Fats and Added Sugars

g. Consumer Research and Consumer Use of Added Sugars Declaration

h. Voluntary Labeling

i. How Added Sugars are Declared

(i) Changing “Sugars” to “Total Sugars”

(ii) Declaration of Added Sugars in Teaspoons

(iii) Distinguishing Between Naturally Occurring and Added Sugars on the Label

(iv) Replacing “Sugars” With “Added Sugars”

(v) Distinguishing Between Different Types of Sugars or Sweeteners

(vi) Warning Statements

j. Variability in Sugar Content

k. Non-Enzymatic Browning and Fermentation

l. Impact on Nutrient Databases

m. International Labeling Guidelines

n. Definition of Added Sugars

(i) Fruit and Vegetable Juice Concentrates

(ii) Intended Purpose of Sweetening

(iii) The “No Added Sugars” Nutrient Content Claim

(iv) Fruit Jellies, Jams, and Preserves

(v) Dried Fruits

(vi) Other Sugars/Sweeteners

(vii) Other Comments

o. Establishing a DRV and Mandatory Declaration of the Percent DV for Added Sugars

(i) Mandatory Declaration of a Percent DV and Whether a DRV Should be Established

(ii) DRV of 10 Percent of Total Calories From Added Sugars

(iii) Food Pattern Modeling

(iv) The Te Morenga et al. Meta-Analysis

(v) The IOM Suggested Maximum Intake Level of 25 Percent or Less of Energy From Added Sugars

(vi) DRV of 10 Percent of Total Calories

(vii) Education

p. RecordsStart Printed Page 33743

4. Sugar Alcohols

a. Voluntary Declaration

b. Use of the Term “Sugar Alcohols”

c. DRV

d. Caloric Value

5. Dietary Fiber

a. Dietary fiber

(i) Definition

(ii) Mandatory Declaration

(iii) Analytical Methods

(iv) DRV

b. Soluble and Insoluble Fiber

(i) Definition

(ii) Voluntary Declaration

(iii) Analytical Methods

(iv) DRV

(v) Caloric Value

6. Other Carbohydrate

I. Protein

1. Mandatory and Voluntary Declaration

2. Analytical Methods

3. DRV

4. Miscellaneous Comments

J. Sodium

1. Mandatory Declaration

2. DRV

K. Fluoride

1. Voluntary Declaration

2. DRV

3. Miscellaneous Comments

L. Essential Vitamins and Minerals of Public Health Significance

1. General Comments

2. Essential Vitamins and Minerals That Are Mandatory

a. Calcium

b. Iron

c. Vitamin A and Vitamin C

3. Essential Vitamins and Minerals That Are Voluntary

a. Vitamin D

b. Potassium

4. Other Essential Vitamins and Minerals

a. Phosphorus

b. Magnesium

c. Vitamin K

d. Choline

e. Vitamin B12

M. Reference Daily Intakes for Vitamins and Minerals

1. Need to Update RDIs

2. Approach to Setting RDIs: EAR Versus RDA

3. Approach to Setting RDIs: Adequate Intake

4. Approach to Setting RDIs: Tolerable Upper Intake Level

5. Approach to Setting RDIs: Population-Weighted Versus Population-Coverage

6. Declaration of Absolute Amounts of Vitamins and Minerals

7. Issues Concerning Specific Vitamins or Minerals

a. Vitamin K

b. Chloride

c. Potassium

d. Choline

e. Vitamin B12

N. Units of Measure, Analytical Methods, and Terms for Vitamins and Minerals

1. General Comments

2. Sodium, Potassium, Copper, and Chloride

3. Folate and Folic Acid

a. Units of Measure

b. Analytical Methods

c. Terms Used to Declare Folate

4. Vitamins A, D, and E

a. General Comments

b. Specific Comments on the Units of Measure for Individual Vitamins

5. Niacin

O. Labeling of Foods for Infants, Young Children, and Pregnant or Lactating Women

1. Age Range for Infants and Young Children

2. Mandatory Declaration of Calories and Statutorily Required Nutrients

a. Declaration of Saturated Fat and Cholesterol

b. Percent DV Declaration

3. Declaration of Non-Statutory Nutrients Other Than Essential Vitamins and Minerals

a. Voluntary Declaration of Calories From Saturated Fat, and the Amount of Polyunsaturated and Monounsaturated Fat

b. Voluntary Declaration of Soluble Fiber, Insoluble Fiber, and Sugar Alcohols

c. Mandatory Declaration of Trans Fat

d. Mandatory Declaration of Added Sugars

e. Voluntary Declaration of Fluoride

4. Declaration of Essential Vitamins and Minerals

a. Mandatory Declaration of Calcium and Iron

b. Mandatory Declaration of Vitamin D and Potassium

c. Voluntary Declaration of Vitamin A and Vitamin C

d. Voluntary Declaration of Other Vitamins and Minerals

5. DRVs and RDIs for Infants Through 12 Months of Age

a. General Comments

b. Calories

c. Total Fat

d. Saturated Fat, Trans Fat, Cholesterol, Dietary Fiber, and Sugars

e. Polyunsaturated Fat, Monounsaturated Fat, Insoluble Fiber, Soluble Fiber, Added Sugars, and Sugar Alcohols

f. Total Carbohydrates

g. Protein

h. Sodium

i. Fluoride

j. Other Vitamins and Minerals

6. DRVs and RDIs for Children 1 Through 3 Years of Age

a. General Comments

b. Calories

c. Total Fat

d. Saturated Fat, Trans Fat, and Cholesterol

e. Polyunsaturated Fat, Monounsaturated Fat, Sugars, Insoluble Fiber, Soluble Fiber, Added Sugars, and Sugar Alcohols

f. Total Carbohydrates

g. Dietary Fiber

h. Protein

i. Sodium

j. Fluoride

k. Other Vitamins and Minerals

7. DRVs and RDIs for Pregnant Women and Lactating Women

a. Calories

b. Total Fat, Saturated Fat, Cholesterol, Total Carbohydrate, Sodium, and Dietary Fiber

c. Trans Fat, Polyunsaturated Fat, Monounsaturated Fat, Soluble Fiber, Insoluble Fiber, Sugars, Added Sugars, and Sugar Alcohols

d. Protein

e. Fluoride

f. Vitamins and Minerals

P. Dietary Supplements

1. Mandatory Dietary Ingredients

2. Folate and Folic Acid

3. Units of Measure

4. Order of Nutrients Declared on the Label

5. Subpopulations

6. Footnote

7. Miscellaneous Comments

8. Compliance Requirements for Dietary Supplements

Q. Format

1. General Comments

2. Increasing the Prominence of Calories and Serving Size

3. Changing the Order of the “Serving Size” and “Servings Per Container” Declarations and Increasing the Prominence of “Servings Per Container”

4. Right-Justifying the Quantitative Amounts Declared in the “Serving size” Statement

5. Changing the “Amount per Serving” Statement

6. Declaration of “Calories From Fat”

7. Presentation of Percent DVs

8. Placement of “Added Sugars”

9. Declaration of Absolute Amounts of Vitamins and Minerals

10. Single and Dual Column Labeling

11. The Footnote

12. Use of Highlighting With a Type Intermediate Between Bold or Extra Bold and Regular Type

13. Addition of a Horizontal Line Beneath the Nutrition Facts Heading

14. Replacing “Total Carbohydrate” With “Total Carbs”

15. Alternative Visual Formats/Fonts

16. Miscellaneous Comments

a. Size and Space Issues

b. Calorie Conversion Factors

R. Compliance

1. Level of Variance Allowed for the Label Declaration of Specific Nutrients

2. Methods Used To Determine Compliance

3. Records Requirements

4. Inclusion of Potassium as a Mineral

5. Requirements for Other Carbohydrate, Soluble and Insoluble Fiber, Added Sugars, and Sugar Alcohols

6. Miscellaneous Comments

S. Technical Amendments

1. Changing the Name of the Program Office

2. Changing the Publication Date of Report Incorporated by Reference

3. Plain Language Edits

4. Correcting § 101.9(c)(8)(iii) To Provide Instructions for Rounding Percent DVs

5. Miscellaneous Changes

T. Miscellaneous Comments

III. Effective and Compliance Dates

IV. Economic Analysis of Impacts

V. Paperwork Reduction Act of 1995

A. Recordkeeping Requirements

B. Reporting Requirements

C. Third-Party Disclosure Requirements

D. Third-Party Disclosure Burden for Manufacturers

VI. Analysis of Environmental ImpactStart Printed Page 33744

VII. Federalism

VIII. References

Executive Summary

Purpose of the Regulatory Action

We are amending our regulations for the nutrition labeling of conventional foods and dietary supplements to help consumers maintain healthy dietary practices. Section 403(q) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 343(q)) specifies certain nutrients to be declared in nutrition labeling, and authorizes the Secretary of Health and Human Services to require other nutrients to be declared if the Secretary determines that a nutrient will provide information regarding the nutritional value of such food that will assist consumers in maintaining healthy dietary practices. The Secretary also has discretion under section 403(q) of the FD&C Act to remove, by regulation and under certain circumstances, nutrient information that is otherwise explicitly required in food labeling under this section.

The final rule revises our regulations to provide updated nutrition information on the label and to improve how the nutrition information is presented to consumers.

Summary of the Major Provisions of the Regulatory Action in Question

The final rule revises the Nutrition Facts label by:

  • Removing the declaration of “Calories from fat” because current science supports a view that the type of fat is more relevant than overall total fat intake in increased risk of chronic diseases;
  • Requiring the declaration of the gram amount of “added sugars” in a serving of a product, establishing a Daily Reference Value (DRV), and requiring the percent Daily Value (DV) declaration for added sugars;
  • Changing “Sugars” to “Total Sugars” and requiring that “Includes `X' g Added Sugars” be indented and declared directly below “Total Sugars” on the label;
  • Updating the list of vitamins and minerals of public health significance. For example, the final rule requires the declaration of vitamin D and potassium and permits, rather than requires, the declaration of vitamins A and C;
  • Updating certain reference values used in the declaration of percent DVs of nutrients on the Nutrition Facts and Supplement Facts labels;
  • Revising the format of the Nutrition Facts and Supplement Facts labels to increase the prominence of the term “Calories;”
  • Removing the requirement for the footnote table listing the reference values for certain nutrients for 2,000 and 2,500 calorie diets;
  • Requiring the maintenance of records to support the declarations of certain nutrients under specified circumstances. For example, because there are no analytical methods that can distinguish between dietary fiber (soluble and insoluble fiber) and nondigestible carbohydrates that do not meet the definition of dietary fiber; added and naturally occurring sugars or the various forms of vitamin E; or folate and folic acid, the final rule requires manufacturers to make and keep certain written records to verify the declarations of dietary fiber, added sugars, vitamin E, and folate and folic acid in the labeling of the food associated with such records. The final rule requires these records to be kept for at least 2 years after introduction or delivery for introduction of the food into interstate commerce. A similar requirement exists with respect to added sugars in foods subject to non-enzymatic browning and fermentation because there are no analytical methods that can determine the amount of added sugar in specific foods containing added sugars alone or in combination with naturally occurring sugars, where the added sugars are subject to non-enzymatic browning and fermentation. However, for manufacturers of such foods who are unable to reasonably approximate the amount of added sugars in a serving of food to which the records requirements apply, the final rule allows manufacturers to submit a petition to request an alternative means of compliance; and
  • Establishing a compliance date of 2 years after the final rule's effective date, except that manufacturers with less than $10 million in annual food sales have a compliance date of 3 years after the final rule's effective date. (For more details, see part III.)

The final rule is the result of significant stakeholder engagement. We received nearly 300,000 comments, conducted several consumer studies and made those studies publicly available, and, in light of new scientific recommendations (particularly for added sugars), issued a supplemental notice of proposed rulemaking.

Elsewhere in this issue of the Federal Register, we have published a final rule that amends the definition of a single-serving container, requires dual column labeling for certain containers, updates the reference amounts customarily consumed and serving sizes for several food product categories, and amends the serving size for breath mints.

Costs and Benefits

We have developed one final regulatory impact analysis (FRIA) for this final rule as well as the final rule entitled “Food Labeling: Serving Sizes of Foods That Can Reasonably Be Consumed at One Eating Occasion; Dual-Column Labeling; Updating, Modifying, and Establishing Certain Reference Amounts Customarily Consumed; Serving Size for Breath Mints; and Technical Amendments.” The FRIA discusses key inputs in the estimation of costs and benefits of the changes finalized by the rules and assesses the sensitivity of cost and benefit totals to those inputs. The two nutrition labeling rules—which have a compliance date of 2 years after the final rule's effective date for manufacturers with $10 million or more in annual food sales, and 3 years after the final rule's effective date for manufacturers with less than $10 million in annual food sales—have impacts, including the sign on net benefits, that are characterized by substantial uncertainty. The primary sensitivity analysis shows benefits having the potential to range between $0.2 and $2 or $5 billion, and costs ranging between $0.2, $0.5 and $0.8 billion (annualized over the next twenty years, in 2014 dollars, at seven percent interest).1

Table 1—Summary of the Primary Sensitivity Analysis of the Costs and Benefits of the Final Rules

[in billions of 2014$]

Benefits (Low)Benefits (Mean)Benefits (High)Costs (Low)Costs (Mean)Costs (High)
Present Value
3%$2.8$33.1$77.7$2.3$4.8$8.6
Start Printed Page 33745
7%1.922.352.52.24.58.3
Annualized Amount
3%0.22.25.20.20.30.6
7%0.22.15.00.20.40.8
Notes: Costs estimates reflect an assumption that the rules have the same compliance date. Compliance period is 36 months for small businesses and 24 months for large businesses. For purposes of this analysis, we consider a small business to be a business with annual food sales of less than $10 million, and a large business to be a business with annual food sales of $10 million or more. Costs include relabeling, recordkeeping, fiber study, additional labeling, future UPC growth labeling, and reformulation costs. Annualized Amount = Amount/Annualizing Factor. Three percent annualizing factor = 14.88. Seven percent annualizing factor = 10.59. The annualizing factors are calculated by summing the inverse of 1 plus the discount rate to the power of the year (t = 1 through t = 20).

I. Background

In general, under section 403(q) of the FD&C Act, a food is deemed misbranded unless its label or labeling bears nutrition information for certain nutrients. To implement section 403(q) of the FD&C Act, we have issued regulations related to:

  • Declaration of nutrients on food labeling, including nutrients that are required or permitted to be declared and the format for such declaration;
  • Label reference values for use in declaring the nutrient content of a food on its label or labeling;
  • Two types of reference values, Reference Daily Intakes (RDIs) for vitamins and minerals and DRVs for certain nutrients, which are used to declare nutrient contents as percent DVs on the Nutrition Facts label;
  • Exemptions for certain specified products; and
  • A simplified form of nutrition labeling and the circumstances in which such simplified nutrition labeling can be used.

These regulations are at § 101.9 (21 CFR 101.9).

Elsewhere in this issue of the Federal Register, we are publishing a final rule that amends the definition of a single-serving container, requires dual column labeling for certain containers, updates the reference amounts customarily consumed and serving sizes for several food product categories and amends the serving size for breath mints.

In addition, section 403(q)(5)(F) of the FD&C Act imposes specific requirements that relate to the labeling of dietary supplement products. Accordingly, our food labeling regulations, at §§ 101.9(j)(6) and 101.36, establish requirements for nutrition labeling of dietary supplements.

A. Legal Authority

We are updating the Nutrition Facts label and Supplement Facts label, as set forth in this final rule, consistent with our authority in section 403(q) of the FD&C Act. Section 403(q)(1) of the FD&C Act states that a food shall be deemed to be misbranded if, with certain exceptions, it fails to bear nutrition labeling and identifies specific nutrient and calorie information required in labeling. Section 403(q)(2)(A) of the FD&C Act gives the Secretary, and by delegation, FDA, the discretion to require, by regulation, nutrition information about nutrients other than those specified in section 403(q)(1) of the FD&C Act to assist consumers in maintaining healthy dietary practices. Section 403(q)(2)(B) of the FD&C Act permits the Secretary, and by delegation, FDA, to remove information relating to a nutrient required by section 403(q)(1) or 403(q)(2)(A) of the FD&C Act if the Secretary determines that it is not necessary to assist consumers in maintaining healthy dietary practices. Consistent with these authorities, we are revising certain nutrient declarations in the Nutrition Facts label and Supplement Facts label. In addition, FDA's authority includes section 2(b)(1) of the Nutrition Labeling and Education Act of 1990 (NLEA) (21 U.S.C. 343 note). Specifically, section 2(b)(1)(A) of the NLEA requires nutrition label information be conveyed in a manner that enables the public to readily observe and comprehend the information and to understand its relative significance in the context of a total daily diet. Section 2(b)(1)(A) of the NLEA also states that such information should be consistent with current scientific knowledge about nutrients and health. We are changing DVs (RDIs and DRVs, as applicable) for some nutrients, and these values are used to calculate the percent DV for use on food labels. The use of reference values based on current science and the use of such values to calculate the percent DV can help consumers understand the nutrition information and its relative significance in a total daily diet. Furthermore, section 2(b)(1)(C) of the NLEA requires that the regulations permit the label or labeling of food to include nutrition information which is in addition to the information required by section 403(q) of the FD&C Act and “which is of the type described in subparagraph (1) or (2) of such section . . . .” We are changing the voluntary declaration of certain nutrients in the Nutrition Facts label consistent with this authority.

Other relevant authorities include sections 701(a), 403(a)(1) and 201(n) of the FD&C Act (21 U.S.C. 371(a), 21 U.S.C. 343(a)(1), and 21 U.S.C. 321(n), respectively). Under section 701(a) of the FD&C Act, we may issue regulations for the efficient enforcement of the FD&C Act to “effectuate a congressional objective expressed elsewhere in the Act” (Association of American Physicians and Surgeons, Inc. v. FDA, 226 F. Supp. 2d 204 (D.D.C. 2002) (citing Pharm. Mfrs. Ass'n. v. FDA, 484 F. Sup. 1179, 1183 (D. Del. 1980)).

We are relying on our authority under sections 403(q), 403(a), 201(n) and 701(a) of the FD&C Act to establish record requirements to support nutrient declarations in labeling for added sugars, dietary fiber, soluble fiber, insoluble fiber, vitamin E, and folate/folic acid, under certain circumstances, so that we can determine compliance with labeling requirements and take enforcement action as needed. For these nutrients, there is no official method of analysis of the Association of Official Analytical Chemists (AOAC) International or other reliable or appropriate analytical procedure, otherwise required by § 101.9(g), available for us to quantify the declared amount of the nutrient, under certain circumstances. Section 101.9(g) sets forth the standards for accuracy of the amount statements of nutrients on food labels. Failing to accurately state the amounts of nutrients on the label under Start Printed Page 33746§ 101.9(g) would result in a product being misbranded. Under section 403(q) of the FD&C Act, a food must bear, in its label or labeling, the amount of the nutrient the food contains. Moreover, the nutrient declaration must be truthful and not misleading under sections 403(a)(1) and 201(n) of the FD&C Act. Thus, when a food product contains dietary fiber (whether soluble, insoluble, or a combination of both) and added non-digestible carbohydrate(s) that does not meet the definition of dietary fiber, we are requiring manufacturers to make and keep certain written records to verify the amount of added non-digestible carbohydrate that does not meet the definition of dietary fiber. When vitamin E is present in a food as a mixture of all rac-α-tocopherol acetate and RRR-α-tocopherol, we are requiring manufacturers to make and keep written records to verify the amount of all rac-α-tocopherol acetate added to the food and RRR-α-tocopherol in the finished food. When a mixture of folate and folic acid is present in a food, we are requiring manufacturers to make and keep records to verify the amount of folic acid added to the food and folate in the finished food. When added sugars as well as naturally occurring sugars are present in a food, we are requiring manufacturers to make and keep records to verify the declared amount of added sugars in the food. Finally, we are requiring manufacturers to make and keep records to verify the declared amount of added sugars in specific foods, alone or in combination with naturally occurring sugars, where the added sugars are subject to non-enzymatic browning and/or fermentation.

The final rule's record requirements for these nutrients are designed to ensure that the nutrient declarations are accurate, truthful, and not misleading, based on information known only to the manufacturer, and to facilitate efficient and effective action to enforce the requirements when necessary. Our authority to establish records requirements has been upheld under other provisions of the FD&C Act where we have found such records to be necessary (National Confectioners Assoc. v. Califano, 569 F.2d 690, 693-94 (D.C. Cir. 1978)). The records we are requiring are only for foods for which an adequate analytical method is not available. The records will allow us to verify the declared amount of each nutrient and that such amount is truthful and not misleading. Thus, the records requirements will help in the efficient enforcement of the FD&C Act.

The authority granted to FDA under sections 701(a), 403(q), 403(a)(1) and 201(n) of the FD&C Act not only includes the authority to establish records requirements, but also includes access to such records. Without such authority, the nutrient declarations for these specific nutrients that we have determined are necessary to assist consumers in maintaining healthy dietary practices under section 403(q)(2)(A) of the FD&C Act are, practically speaking, not enforceable. Without access to such records, we would not know whether the amount declared on the label or in the labeling of these nutrients, under the circumstances described, is truthful and not misleading under sections 403(a)(1) and 201(n) of the FD&C Act. The introduction or delivery for introduction into interstate commerce of a misbranded food is a prohibited act under section 301(a) of the FD&C Act (21 U.S.C. 331(a)). Thus, to determine whether the food is misbranded and the manufacturer has committed a prohibited act, we must have access to the manufacturer's records that we are requiring be made and kept under sections 403(q), 403(a)(1), 201(n) and 701(a) of the FD&C Act. Failure to make and keep records and provide the records to us, as described in § 101.9(g)(10) and (11), would result in the food being misbranded under sections 403(q) and 403(a)(1) of the FD&C Act.

B. Need To Update the Nutrition Facts and Supplement Facts Labels

We first issued regulations related to the Nutrition Facts label in 1993 and amended them in 1995 (to establish new DVs and to update the DVs (60 FR 67164, December 28, 1995)) and in 2003 (to address the declaration of trans fats (68 FR 41434, July 11, 2003)). From July 2003 to November 2007, we also issued three advance notices of proposed rulemaking (ANPRMs) seeking public comment on issues relevant to updating the Nutrition Facts label. These ANPRMs sought comment on:

  • Data that could be used to establish new nutrient content claims about trans fatty acids; to establish qualifying criteria for trans fat in nutrient content claims for saturated fatty acids and cholesterol, lean and extra lean claims, and health claims that contain a message about cholesterol raising lipids; and, in addition, to establish disclosure and disqualifying criteria to help consumers make heart healthy food choices. We also requested comments on whether we should consider statements about trans fat, either alone or in combination with saturated fat and cholesterol, as a footnote in the Nutrition Facts label or as a disclosure statement in conjunction with claims to enhance consumer understanding about cholesterol-raising lipids and how to use the information to make healthy food choices (68 FR 41507, July 11, 2003). We later extended the comment period (69 FR 20838, April 19, 2004) to receive comments that considered the information in the 2004 meeting of the Nutrition Subcommittee of the Food Advisory Committee which addressed whether the available scientific evidence supported listing the percent DV for saturated fat and trans fat together or separately on the Nutrition Facts label and what the maximal daily intake of trans fat may be;
  • The prominence of calories on the food label (70 FR 17008, April 4, 2005) (the 2005 ANPRM). We took this action in response to recommendations from the Obesity Working Group established by the Commissioner of Food and Drugs to develop an action plan to address the growing incidence of obesity in the United States. The 2005 ANPRM, in part, requested comments on whether giving more prominence to the declaration of calories per serving would increase consumer awareness of the caloric content of the packaged food and whether providing a percent DV for total calories would help consumers understand the caloric content of the packaged food in the context of a 2,000 calorie diet. We also requested comments on questions concerning the declaration of “Calories from fat;” and
  • The revision of reference values and mandatory nutrients (72 FR 62149, November 2, 2007) (the 2007 ANPRM). The 2007 ANPRM requested comment on various aspects of nutrition labeling, including new reference values we should use to calculate the percent DV in the Nutrition Facts and Supplement Facts labels and factors we should consider in establishing such new reference values. We also requested comments on whether we should require that certain nutrients be added or removed from the Nutrition Facts and Supplement Facts labels.

Additionally, between 1993 and 2013, we received 12 citizen petitions asking us to make various changes to the Nutrition Facts and Supplement Facts labels. For example, some petitions asked us to permit the use of a different term on the Nutrition Facts label, while others sought changes in definitions, values (such as caloric values or the DV for a specific nutrient), or the inclusion of more information on the Nutrition Facts label.

Yet, as we considered the issues raised in the ANPRMs and the citizen petitions, the public health profile of the U.S. population changed, and new Start Printed Page 33747information became available about nutrient definitions, reference intake values, and analytical methods. New dietary recommendations also were published. We reconsidered what nutrients we should require or permit to be listed on the Nutrition Facts label and what nutrient reference intake values we should use as a basis for calculating the percent DVs in food labeling. We also considered corresponding changes to the Supplement Facts labels. Consequently, in the Federal Register of March 3, 2014 (79 FR 11879), we issued a proposed rule to amend our labeling regulations for conventional foods and dietary supplements to provide updated nutrition information on the label and to help consumers maintain healthy dietary practices. The preamble to the proposed rule discussed, in some detail, the reasons why we felt it necessary to update the Nutrition Facts and Supplement Facts labels (see 79 FR 11879 at 11884 through 11889). In brief, the preamble to the proposed rule discussed:

  • Rates of chronic disease, such as cardiovascular disease, diabetes, and cancer, and changes in obesity rates (79 FR 11879 at 11885);
  • Dietary recommendations, consensus reports, and national survey data, such as the Institute of Medicine (IOM) Dietary Reference Intakes Reports (which resulted in the development of a set of reference values known collectively as Dietary Reference Intakes (DRIs) (id. at 11885 through 11887). The DRIs themselves consist of four categories of reference values: (1) The Estimated Average Requirement (EAR); (2) Recommended Dietary Allowance (RDA); (3) Adequate Intake (AI); and (4) Tolerable Upper Intake Level (UL) (id.). The preamble to the proposed rule explained that the EAR is the average daily nutrient intake level that is estimated to meet the requirements of half of the healthy individuals in a particular life stage and gender group and that EARs are used for assessing the statistical probability of adequacy of nutrient intakes of groups of people. The RDA is an estimate of the average intake level that meets the nutrient requirements of nearly all (97 to 98 percent) healthy individuals in a particular life stage and gender group and is set using the EAR. In general, the RDA is the EAR plus two times the standard deviation of the EAR. The RDA is used to plan nutrient intakes for individuals to ensure a low probability of inadequacy. The AI is the level determined for an essential nutrient or a nutrient that is beneficial for human health when there is insufficient evidence to calculate an EAR for that nutrient, and therefore insufficient evidence on which to establish an RDA. AIs can be based on a variety of data, including scientific evidence about the essentiality of a nutrient (i.e., choline, biotin, fluoride), experimental data on risk reduction of chronic disease (i.e., dietary fiber, potassium), and median intakes of a nutrient using national survey data (i.e., vitamin K, pantothenic acid, chromium, manganese, linoleic acid, and α-linolenic acid). Although there is less certainty about an AI value than about an RDA value, the AI is similarly designed to cover the needs of nearly all individuals. The UL is the highest average daily intake level likely to pose no risk of adverse health effects for nearly all people in a particular group. The UL is not intended to be a recommended level of intake, but is used to assess the risk of adverse health effects from excessive nutrient intake. As intake above the UL increases, so does the potential for risk of adverse health effects (id. at 11885 through 11886). The preamble to the proposed rule also discussed the Dietary Guidelines for Americans (DGA); the DGA is developed jointly by the U.S. Department of Agriculture and the U.S. Department of Health and Human Services and provides key recommendations on dietary patterns and quantitative intake recommendations with respect to micronutrients and macronutrients (id. at 11886). Although the preamble to the proposed rule discussed the DGA that was issued in 2010, in February 2015, the Scientific Report of the 2015 Dietary Guidelines Advisory Committee (DGAC Report) became publicly available. While the DGAC Report is not a DGA itself (because the Federal government must determine how to use the information in the DGAC Report to develop the 2015-2020 version of the DGA), the DGAC Report contains scientific information on specific nutrients and vitamins as well as a review of the underlying scientific evidence. For example, the DGAC Report contains scientific evidence related to a daily intake recommendation for added sugars. In the Federal Register of July 27, 2015 (80 FR 44303), we issued a supplemental proposed rule with respect to the scientific evidence in the DGAC Report pertaining to added sugars and the possible inclusion of added sugars to the Nutrition Facts and Supplement Facts labels.
  • Consumer use and understanding of the Nutrition Facts label (79 FR 11879 at 11887). The preamble to the proposed rule discussed, among other things, the frequency at which consumers use food labels and the purposes for which they consulted food labels (id.). The preamble to the proposed rule also noted that consumer research data suggested that, despite widespread use of food labels, certain elements of the Nutrition Facts label “may need improvement” (such as consumer understanding of the concept of percent DVs) (id.). We also stated that we intended to continue performing research during the rulemaking process to evaluate how variations in label format may affect consumer understanding and use of the Nutrition Facts label as well as to help inform consumer education (id.).
  • Other considerations, including the focus of the Nutrition Facts label itself and practical limitations (id. at 11887 through 11888). For example, we noted that the Nutrition Facts label information is to help consumers make more informed choices to consume a healthy diet and not intended for the clinical management of an existing disease. However, we also said that we were considering the large proportion of the U.S. population that is at risk for chronic disease as we proposed changes to the Nutrition Facts label's content and format (id. at 11887). Simultaneously, we recognized that there is not room on the label for all information that may be related to maintaining healthy dietary practices and that space constraints on the label of most foods make it impractical to declare all essential nutrients (id. at 11888). We added that having a large amount of information on the label could interfere with consumers' abilities to use the information that has the greatest public health significance and that, given the amount and format of information that we require on the label, limits to the voluntary information on the label are necessary so that voluntary information does not clutter the label, does not mislead, confuse, or overwhelm the consumer, and does not take away prominence of and emphasis on the required information (id.).

The preamble to the proposed rule also discussed the citizen petitions and ANPRMs (id. at 11888 through 11889) as influencing our development of the proposed rule. Additionally, as stated earlier in part I.B, in the Federal Register of July 27, 2015 (80 FR 44303), we issued a supplemental proposed rule to establish a DRV of 10 percent of total energy intake from added sugars, require the declaration of the percent DV for added sugars on the label, and to provide text for the footnotes to be used on the Nutrition Facts label. The Start Printed Page 33748supplemental proposed rule also provided additional data and information to support the declaration of added sugars on the label and made our consumer research regarding the footnote text and added sugars declarations publicly available.

II. Comments to the Proposed Rule and the Supplemental Proposed Rule, Our Responses, and a Description of the Final Rule

A. Introduction

The proposed rule would amend our labeling regulations for conventional foods and dietary supplements to provide updated nutrition information on the label. In brief, the proposed rule would (among other things):

  • Require the declaration of “Added Sugars” on the label. “Sugars” include both “added sugars” and sugars that are naturally occurring in food. The proposed rule would require the declaration of “Added Sugars” indented under “Sugars” so that both would be listed;
  • Remove the requirement for declaring “Calories from fat.” Current research shows that the total fat in the diet is less important than the type of fat. In addition, our consumer research shows that removal of the declaration of “calories from fat” has no effect on consumers' ability to judge the healthfulness of a product;
  • Revise the nutrients of public health significance that must be declared on the label. The proposed rule would require the declaration of vitamin D and potassium. Vitamin D is important for its role in bone development and general health, and intakes among some population groups are inadequate. Adequate potassium intake is beneficial in lowering blood pressure, and intakes of this nutrient are also low among some population groups. The proposed rule also would no longer require mandatory labeling for vitamin C or vitamin A because data indicate that deficiencies are not common. Voluntary labeling for vitamins C and A would be allowed; and
  • Revise DVs for certain nutrients that are either mandatory or voluntary on the label. Examples include calcium, sodium, dietary fiber and vitamin D. Some DVs are intended to guide consumers about maximum intake—saturated fat, for example—while others are intended to help consumers meet a nutrient requirement—iron, for example. DVs are used to calculate the percent Daily Value (% DV) on the label, which helps consumers understand the nutrient information on the product label in the context of the total diet. We considered revisions to the DVs based on scientific evidence related to recommendations published by the IOM and other reports such as the DGA. In addition to changing some DVs, the proposed rule would change the units used to declare vitamins A, E, and D from “international units,” or “I.U.” to a metric measure, milligrams or micrograms, and also would include the absolute amounts in milligrams or micrograms of vitamins and minerals, in addition to the % DV, on the label.

The proposed rule also would change the appearance of the label itself by highlighting key parts of the label that are important in addressing current public health problems. For example, the proposed rule would:

  • Highlight the caloric content of foods by increasing the type size and placing in bold type the number of calories and servings per container;
  • Shift to the left of the label % DV. The % DV is intended to help consumers place nutrient information in the context of a total daily diet;
  • Declare the actual amount, in addition to % DV, for all vitamins and minerals when they are declared;
  • Change “Amount Per Serving” to “Amount per ___”, with the blank filled in with the serving size in common household measures, such as “Amount per 1 cup”;
  • Replace the listing of “Total Carbohydrate” with “Total Carbs” and add an indented listing of “Added Sugars” directly beneath the listing for “Sugars;”
  • Right justify the actual amounts of the serving size information;
  • Reverse the order of “Serving Size” and “Servings Per Container” declarations; and
  • Remove the existing footnote that describes the DVs for 2,000 and 2,500 calories to provide more space to better explain the percent dietary value.

The proposed label changes were intended to help consumers maintain health dietary practices, and we based the updated information on current data on associations between specific nutrients and chronic diseases or health-related conditions in the United States and on new information regarding consumer understanding of the label and consumption patterns.

We provided a 90-day comment period for the proposed rule. In the Federal Register of May 27, 2014 (79 FR 30055), we extended the comment period by 60 more days after receiving multiple requests to extend the comment period. In the Federal Register of May 29, 2014 (79 FR 30763), we announced a public meeting to discuss the proposed rule, as well as the proposed rule on serving size requirements, and to solicit oral stakeholder and public comments and to respond to questions about the proposed rules. Additionally, as we stated in part I.B, in the Federal Register of July 27, 2015 (80 FR 44303), we issued a supplemental proposed rule to establish a DRV of 10 percent of total energy intake from added sugars, to require the declaration of the percent DV for added sugars, and to provide text for the footnotes to be used on the Nutrition Facts label. The supplemental proposed rule also provided additional information to support the declaration of added sugars on the label and made our consumer research regarding added sugars declarations and the footnote text publicly available. We also reopened the comment period for the purpose of inviting public comment on two consumer studies we added to the administrative record (80 FR 44302). The two consumer studies pertained to proposed changes to the format of the Nutrition Facts label and to consumers' interpretations of information on the Nutrition Facts label. Collectively, with respect to the proposed rule, the supplemental proposal, and the related Federal Register documents, we received nearly 300,000 comments from consumers, foreign governments, industry, trade associations, professional societies, academia, health professionals, and other government agencies.

We discuss the issues raised in the comments on the proposed rule and supplemental proposed rule and also describe the final rule, in part II. We preface each comment discussion with a numbered “Comment,” and each response by the word “Response” to make it easier to identify comments and our responses. We have numbered each comment to help distinguish among different topics. The number assigned is for organizational purposes only and does not signify the comment's value, importance, or the order in which it was received.

Incorporation by Reference

Additionally, the final rule incorporates by reference the “Official Methods of Analysis of the AOAC International,” 19th Edition. The “Official Methods of Analysis of AOAC International” (AOAC Methods) is a comprehensive collection of chemical and microbiological methods of analysis. The AOAC Methods have undergone rigorous scientific review and validation to determine the performance characteristics for the intended analytical application and Start Printed Page 33749fitness for purpose. Each method includes specific instructions for performing the chemical analysis of a substance in a particular matrix.

Although the 19th Edition of the AOAC Methods was available for purchase from AOAC when we drafted the proposed rule, the reference has since been sold out at AOAC INTERNATIONAL. Copies, however, can be obtained or downloaded from secondary sources, and the final rule identifies one such source. However, we do not endorse any particular secondary source or reseller and note that other resellers also may have the 19th Edition of the AOAC Methods for sale.

B. General Comments

Some comments raised issues that were general in nature or affected multiple parts of the rule.

Additionally, one foreign government agency, Health Canada, provided factual information and comments on various aspects of its review and update of nutritional information on the Canadian food label. Health Canada did not advocate a particular outcome or did not provide comments on possible changes or suggestions to our proposed rule.

1. Comments Seeking an Education Campaign or Program

(Comment 1) Several comments suggested that we develop a well-funded, coordinated, multi-component consumer education campaign to promote and explain the new Nutrition Facts label, the changes to the label, and the use of the label to help consumers to make healthier food and beverage choices. Many comments suggested that we coordinate our consumer education campaign with other Federal government Agencies including the Centers for Disease Control and Prevention (CDC), other parts of the Department of Health and Human Services, the U.S. Department of Agriculture (USDA), State health departments, and non-government entities, including food manufacturers, retailers, and non-profit organizations with an interest in nutrition and health.

Several comments suggested that our education campaign emphasize calories because knowledge of calories is important for rolling back the obesity epidemic. Other comments would focus on sodium because of its contribution to cardiovascular disease or on nutrients (such as added sugars) that would be on the Nutrition Facts label for the first time and nutrients (such as total fat) for which the science has changed significantly.

Several comments noted that, although some revisions (such as the declaration of trans fatty acids and the declaration of food allergens) have been made to nutrition labeling since implementation of the NLEA, there have not been changes to the label of the magnitude in the proposed rule. The comments said, therefore, that public outreach, through avenues such as Webinars, town hall meetings, and social media, will be a key component of the nutrition labeling modernization effort. A few comments suggested that the consumer education program should be informed by any relevant consumer research. Several comments noted that there is consumer confusion over the meaning of percent DV and consumer research had found that consumers do not understand or know how to use the DVs; thus, the percent DV should be a key area in which to focus consumer education efforts. One comment specifically stated that percent DV/added sugars disclosure will create substantial consumer confusion that does not exist today and that we would need to provide consumer education in attempt to overcome the confusion. Several comments stated that education is needed to help consumers understand the meaning of percent DVs, with inclusion of a brief footnote on packages, but additional consumer education should be done online.

Several comments suggested that, although the education campaign is important for all consumers to know about, understand, and use the revised Nutrition Facts label, an education campaign should primarily be designed to reach consumers who are least likely to understand and use the label, including lower income consumers, communities with diverse languages and literacy levels who are also more likely to suffer from many obesity- and nutrition-related chronic diseases than those with higher incomes and education. The comments stated that we should use multiple and culturally relevant communication channels and messengers, and we should field test our messages to ensure they are relevant and compelling for audience segments. One comment noted that a Canadian study (Ref. 1) found that participants were significantly less likely to correctly assess the Nutrition Facts label for calorie and nutrient information if they reported lower educational attainment, lower income, or non-white ethnicity. The comment also stated that the 2012 IOM report on front-of-pack labeling (Ref. 2) found that “a lack of nutrition knowledge is a major barrier to effective use of the [Nutrition Facts label] and may actually lower the motivation of some consumers to use the nutrition information on the label,” and that “some racial groups . . . are less likely . . . to use and understand nutrition labels, primarily because of lack of time to read labels and lack of understanding of the nutrition information.” The comment stated that working with other health departments and organizations could help extend our educational resources to all rural and urban communities. Another comment suggested that, to be most effective, we should incorporate lessons learned on how individuals from various subpopulations interpret the new label design. The comment noted that such education needs to accommodate individuals at various levels of educational achievement and with cultural and ethnic diversity.

A few comments suggested that we conduct the education campaign after the final rule's publication and before the rule's compliance date. One comment suggested that our recommendations be publicized to groups who interact with the public at least 3 months before implementation of the new Nutrition Facts label style and elements to allow for preparation of curricula and development of local educational and media efforts.

One comment suggested that, similar to our earlier public service campaigns such as “The Real Cost” campaign targeting youth tobacco use, we have a unique ability to get the attention of the public and shape understanding about the risks of lifestyles habits and choices. Other comments suggested that we integrate the education campaign with preexisting consumer education programs and initiatives, including the USDA's Supplemental Nutrition Assistance Program Education (SNAP-Ed) (the nutrition promotion and obesity prevention component of SNAP), school-based nutrition education programs, and grocery store labeling and education initiatives, such as the Boston Public Health Commission's “Re-Think Your Drink” campaign. One comment suggested that we develop a similar outreach campaign as “Read the Label” to enable Americans to understand the revised label and its uses.

One comment noted that, while nutrition education has been shown to have a positive impact on consumers' dietary choices and patterns, multiple studies suggest that education alone is not adequate to change consumer behavior around healthy eating for a sustained amount of time. The comment suggested that, for education efforts to be effective and sustainable, they should be combined with policy, systems, and environmental changes that support healthful choices. For example, food Start Printed Page 33750environmental changes, such as increased availability of and access to healthful foods, combined with education efforts, have been found to be significantly more effective in changing consumer behavior in the long run.

(Response) We agree that a consumer education and outreach campaign will assist in making the new food label a successful tool in continuing to help consumers to make healthy food and beverage choices. Currently, we have available a collection of various educational materials (e.g., videos, an array of public education materials and brochures (in English and Spanish)) on numerous nutrition topics, including materials on the Nutrition Facts label (e.g., “Read the Label,” Make Your Calories Count, Sodium: Look at the Label) (Ref. 3). These materials are intended for educators, teachers, health professionals (e.g., dietitians, physicians, and nurses) as well as for general consumers. Our intent is to update our existing educational materials and create new educational opportunities to explain how to use the label to help consumers make healthy dietary choices, with an emphasis on each of the new changes of the label. We intend to continue to work on and to create new partnership opportunities with other Federal government Agencies including other parts of the Department of Health and Human Services, USDA, State health departments, health professional organizations, food manufacturers, retailers, and non-profit organizations that have an interest and responsibilities in nutrition education and health promotion. These partnerships will help us develop and disseminate our educational materials that will ease the transition to the revised nutrition label and help consumers to understand and use the label to make well-informed dietary choices. Through our work with both government and non-government entities, our continued goal is to increase consumers' knowledge and effective use of the new Nutrition Facts label and to ensure that consumers have accurate and adequate resources, materials, and information for making healthy food and beverage choices. Furthermore, we intend to continue a variety of activities such as conduct and report on existing and planned food labeling research; to develop education initiatives at the national and local levels; to build labeling education exchanges; and to integrate food labeling education into existing programs (e.g., USDA-school-based nutrition education programs). We plan to continue to build partnerships capable of developing and evaluating labeling education targeted to the dietary needs of diverse populations, such as low literacy consumers, lower incomes, minorities, and various subpopulations (e.g., children, older subpopulation, women of childbearing age) as well as to the general public.

As for the comments stating that the percent DV should be a key area to focus consumer education efforts, and that the disclosure of “% DV/Added sugars” will create substantial consumer confusion, we will continue to provide education and outreach to consumers about using the Nutrition Facts label to make healthful dietary choices. (We also note that the comments' use of the term “confusion” is, itself, misplaced; a more appropriate characterization would be whether some consumers we tested “understand” or “misunderstand” the declaration of added sugars. However, because the comments used the term “confusion,” for convenience, we will use the same term in this response as well as in other responses on the subject of added sugars, consumer research, and education, in reference to the findings that some consumers we tested seemed to misunderstand that the term “added sugars” referred to a subcomponent of total sugars on the label.) The changes in the “new” label will be highlighted and clarified through these education and outreach endeavors. We are not planning to focus educational activities on the “% DV/Added Sugars” disclosure of the Nutrition Facts label in isolation. Instead, education and outreach will focus on a number of aspects of the label to enhance its use and understanding by consumers.

As for the comment stating that education efforts should be combined with policy, systems, and food environmental changes that support healthy dietary choices, we understand that combining the Nutrition Facts label education efforts with other policies may be more effective in supporting healthy dietary choices; however, many policies, such as consumer access to or increased availability of healthful foods, are not under our purview and are outside the scope of this rulemaking. As part of supporting access to healthy foods, we continue to encourage food product reformulation, such as reducing sodium content in the food supply.

2. Comments Linking the Nutrition Facts Label to Specific Diseases

(Comment 2) Many comments recommended mandatory declaration of specific nutrients (e.g., phosphorous, added sugars, potassium) on the Nutrition Facts label because, according to the comments, these nutrients are or may be helpful to persons with an existing acute or chronic disease (e.g., heart disease, chronic kidney disease, diabetes). According to the comments, mandatory declaration of the specific nutrient would be helpful for the management of specific diseases or conditions.

(Response) While the Nutrition Facts label information has never been, nor is it now, targeted to individuals with acute or chronic disease (e.g., diabetes, chronic kidney disease or cardiovascular disease (CVD)), consumers with these types of diseases may be able to use quantitative information on the label to follow advice they have received from a health care professional concerning their conditions. However, the nutrient declaration and percent DVs on the label are to help consumers make more informed choices to consume a healthy diet and not intended for the clinical management of an existing disease.

3. Use of Household Measures

(Comment 3) Many comments recommended that the amount of total fat, carbohydrate, sugars, added sugars, protein, and sodium be declared in common household measurements (e.g. teaspoons) instead of or in addition to grams (g). The comments said that the metric system has not been widely adopted in the United States, and the average consumer is more familiar with household measurements than with grams. The comments also said that, if the purpose of the information on the label is to help consumers understand the actual amount of nutrients in a food product, the declaration of these nutrients in grams defeats the intended purpose of the label because consumers cannot conceptualize gram amounts. One comment suggested that we include an icon that would allow the consumer to visualize a gram and that we could use a teaspoon for such an icon. Another comment suggested using ounces instead of or in addition to grams because consumers can understand this information more easily than gram amounts. The comment also recommended stating on the label that there are 28 grams in an ounce and 448 grams in a pound.

(Response) We decline to require the declaration of total fat, carbohydrate, sugars, added sugars, protein, and sodium in household measurements or in ounces. Using a volume measure rather than a weight measurement for total fat, carbohydrate, sugars, added sugars, and protein would provide inaccurate information. The gram is a measure of mass or weight while a teaspoon is a measure of volume. The Start Printed Page 33751gram weight of different carbohydrates, fats, and proteins is different. For example, a teaspoon of sucrose or table sugar weighs 4.2 grams, but a teaspoon of corn syrup weighs 7.3 grams (Ref. 4) and has 1.5 grams of water and 5.1 grams of sugar.

Additionally, many ingredients provide multiple nutrients, so it may not be possible for manufacturers to determine the volume contribution that each ingredient provides towards the various macronutrients. For example, salt is composed of sodium and chloride. Other ingredients, such as baking soda, contain sodium. It would be very difficult for a manufacturer to determine the volume of sodium contributed by both salt and baking soda in a food such as a cookie.

We also reiterate that the gram weight is a more precise measurement. When it comes to some nutrients, particularly added sugars and sodium, most products contain a fraction of a teaspoon.

Additionally, dietary recommendations for total fat, total carbohydrate, sugars, added sugars, protein, and sodium are provided in grams and milligrams (mg) (Ref. 5). The declaration of these nutrients in household measurements would make it more difficult for consumers to compare the amount of the nutrient in a serving of a product to current dietary recommendations.

As for the comments suggesting the declaration of teaspoon amounts in addition to grams, there is limited space available on the label, especially for small packages and dual column labeling (see part II.Q). Adding a teaspoon amount before or after the gram declaration of the nutrients could make it more difficult to read the information on the label. Therefore, we decline to allow for voluntary declaration of household measurements of total fat, carbohydrate, sugars, added sugars, protein, and sodium.

Finally, with respect to declaring nutrients in ounces or pounds, we decline to revise the rule as suggested by the comment. Many products contain an ounce or less of food per serving. If ounces or pounds were declared on the label for these nutrients, fractions would have to be declared. The gram weight of a nutrient is a more precise measurement than ounces or pounds.

4. Impact on Other Regulations

(Comment 4) Several comments expressed concern that revision of the RDIs would necessitate revisions to other regulations for nutrient content claims and health claims. Several comments noted that many products (such as juices and dairy products) that are now eligible to make nutrient content claims for nutrients that are increasing (such as potassium, calcium, vitamin D, and vitamin C) would no longer be able to do so. Other comments expressed concern that standards of identity for yogurt, milk, and cheeses might need to be updated. Other comments noted that food additive regulations for the addition of calcium and vitamin D to juice would need to be reevaluated; some comments suggested that we delay finalizing the rule until we update our rules on nutrient content claims.

(Response) We will address, as appropriate and as time and resources permit, the impact on our other regulations that are outside the scope of this rulemaking in separate rulemaking actions. While we do intend to revisit our regulations for nutrient content claims at a later date to determine if changes are necessary, we recognize that changes to the list of nutrients declared on the Nutrition Facts label or the RDIs or DRVs of nutrients could affect the ability of some products to bear certain nutrient content or health claims. We also recognize that changes to the RDIs for calcium, for example, may impact certain other regulations, including our food additive regulations in § 172.380 (21 CFR 172.380), where the use of vitamin D is based on a product containing a certain percentage of the RDI for calcium.

We also do not agree to delay finalizing this rule until we provide any updates to our rules on nutrient content claims. The RDIs are based on how much of a nutrient should be consumed to meet nutrient needs and not based on eligibility to make a nutrient content claim.

(Comment 5) One comment said we should try to finalize all the anticipated changes to the food package labels simultaneously, including Nutrition Facts label, a front-of package panel, and health claims so that a consumer education program about the revised Nutrition Facts label also could explain all changes at one time, thereby minimizing consumer confusion and maximizing resources available for education.

(Response) We do not agree that the rule should be delayed until we provide any updates to rules on health claims or any possible rule on front of pack labeling. The pace at which each individual rulemaking activity proceeds may be affected by our resources and other priorities; consequently, it would be impractical to defer action on this final rule until we complete other possible regulatory actions.

5. Consumer Research

In the preamble to the supplemental proposed rule (80 FR 44303 at 44305 through 44306), we discussed, among other things, information on two consumer studies (80 FR 44303), and in the Federal Register of July 27, 2015 (80 FR 44302), we reopened the comment period for the proposed rule for inviting public comments on two additional consumer studies. These four consumer studies, conducted in 2014 and 2015, were randomized controlled experimental studies with English-speaking adult consumers: (1) The Experimental Study on Consumer Responses to Nutrition Facts Labels with Declaration of Amount of Added Sugars (“the added sugars study”); (2) the Experimental Study on Consumer Responses to Nutrition Facts Labels with Various Footnote Formats (“the footnote study”); (3) the Experimental Study of Proposed Changes to the Nutrition Facts Label Formats (“the format study”); and (4) the Eye-tracking Experimental Study on Consumer Responses to Modifications to the Nutrition Facts Label Outlined in the Food and Drug Administration's Proposed Rulemaking (“the eye-tracking study”). All study participants were adults 18 years of age or older. The overarching purpose of these studies was to explore how and to what extent different presentations of the label and its components (e.g., different formats of the entire Nutrition Facts label or different formats of how added sugars may be declared on the label) may affect consumer responses to the presentations. In addition, the added sugars study was conducted to enhance our understanding of how inclusion of added sugars declarations on the Nutrition Facts label may affect how consumers perceive a product or a label and how to better educate people in using the Nutrition Facts label in general. In the following paragraphs, we briefly describe the methodology and key findings of each study and discuss the characteristics and proper use of the study data and findings.

The added sugars study was a randomized, controlled, Web-based experiment conducted in July and August of 2014 to enhance our understanding of how inclusion of added sugars declarations on the Nutrition Facts label may affect how consumers perceive a product or a label and how to better educate people in using the Nutrition Facts label in general. At the time the research was designed, we were not aware of any previous studies of consumer responses to added sugars information. We Start Printed Page 33752engaged in this research to help inform our potential consumer education efforts if added sugars were declared on the Nutrition Facts label. The research design did not include a percent Daily Value for added sugars on the food label or the ingredient listing that will appear on packages and therefore did not provide data on how those pieces of information would affect consumer responses to an added sugars declaration. Nevertheless, the study achieved its intended objectives of providing an initial understanding of potential consumer reactions to added sugars declarations on Nutrition Facts labels.

Participants (n = 6,480) self-administered the study on their own computers and were randomly assigned to view mock-ups of one of three formats of the current Nutrition Facts label: (1) The “Added Sugars” format, in which an added sugars declaration was indented below a “Sugars” declaration; (2) the “Total Sugars + Added Sugars” format, in which an added sugars declaration was indented below a “Total Sugars” declaration; and (3) the “Current” format, in which “Sugars,” but not added sugars, was declared on the label. While viewing their assigned label images, participants answered questions on their ability to recognize and compare nutrient amounts on the Nutrition Facts label and their judgments about the foods' overall healthfulness and relative nutrient levels. The Nutrition Facts label images were accompanied by a product identity caption (e.g., “Frozen Meal” or “Cereal”), but no front panel or brand name, either fictitious or real. The study was designed as a controlled experimental study that employed random assignment in order to establish causal relationships between test conditions and consumer responses. Because the study was not intended to generate population estimates, participants were selected from members of an online consumer panel in the United States. To recruit a diverse study sample, quotas were constructed with the aim of making the sample's distributions of age, gender, education, race/ethnicity, and census region resemble that of the U.S. population as closely as possible.

The added sugars study found that, while added sugars declarations increased the ability of some participants to identify those products with less added sugars and to determine the quantity of added sugar in a food, the declarations decreased the ability of some participants to correctly identify the quantity of total sugars in a food. The “Total Sugars + Added Sugars” format appeared to help participants better comprehend the total amount of sugars in a food than the “Added Sugars” format. More details about the study methodology, tested label formats, and results can be found in an Administrative File entitled “Experimental Study on Consumer Responses to Nutrition Facts Labels with Declaration of Amount of Added Sugars (OMB No. 0910-0764)” (Docket FDA-2012-N-1210).

The footnote study was a randomized, controlled, Web-based experiment conducted concurrently with the added sugars study. The footnote study included 3,866 participants who were different participants from those in the added sugars study but selected from the same online consumer panel using the same sampling methodology as that used in the added sugars study. The purpose of the footnote study was to explore consumer responses to various formats for the footnote area of the Nutrition Facts label, including those that provide information such as various definitions for percent Daily Value, a succinct statement about daily caloric intake, and general guidelines for high and low nutrient levels. Participants self-administered the study on their own computers and were randomly assigned to view a mock-up of one of seven Nutrition Facts label formats. Five of these Nutrition Facts formats included modified footnotes; one included the current footnote, and one included no footnote at all. The footnotes displayed variations of information such as a description of percent Daily Value, a succinct statement about daily caloric intake, or a general guideline for interpreting percent Daily Values, or noted nutrients whose daily intake should be limited. While viewing a label, participants answered questions about their judgments of the foods' overall healthfulness and levels of vitamin A, vitamin C, dietary fiber, fat, and sodium. After rating the product's nutritional attributes, participants who viewed labels that included one of the five modified footnotes or the current footnote were asked to rate the footnote statement's understandability, usefulness, believability, and helpfulness for the following dietary tasks: Comparing products, planning a healthy diet, determining the healthfulness of a food, and deciding how much of a food to eat.

The footnote study found that all five footnote options produced similar perceptions and judgments relative to the current footnote and the no-footnote control. Nevertheless, all five modified footnotes were rated as easier to understand than the current footnote. Footnote 1 was perceived to be more believable than the current footnote. Footnote 1 stated the following: “2,000 calories a day is used for general nutrition advice. * The % Daily Value tells you how much a nutrient in a serving of food contributes to a daily diet.” More details about the study methodology, tested label formats, and results can be found in an Administrative File entitled “Experimental Study on Consumer Responses to Nutrition Facts Labels with Various Footnote Formats (OMB No. 0910-0764)” (Docket FDA-2012-N-1210).

The format study was a Web-based study conducted in February-March, 2015, to explore consumer responses to: (1) Three different formats of the Nutrition Facts label (the Current format, the Proposed format, and the Alternative format discussed in the proposed rule) (80 FR 11879), with each format embodying all current label elements or most of the potential changes to them as outlined in the proposed rule (e.g., the prominence of the calorie declaration, the position of the percent Daily Value column); (2) the location of the percent Daily Value column (right or left side of the label); (3) column type (single-column, dual-column, and dual-calorie); (4) location of sodium declaration on the Proposed single column label; and (5) the declaration of voluntary vitamins and fats (voluntary vitamins, voluntary fats, and both vitamins and fats). A total of 5,430 consumers participated in the format study; they were recruited from the same online consumer panel with the same sampling methodology as in the added sugars and the footnote studies. As in the added sugars study and the footnote study, participants were randomly assigned to view different Nutrition Facts label mock-ups and answer questions about their: (1) Perceptions of the healthfulness and levels of nutrients of a product; (2) identification of which product in a pair of products was considered healthier; (3) accuracy of identifying the amount of nutrients per serving and per container and number of servings per container; and (4) perceptions of the understandability, usefulness, believability, and helpfulness of the label for various dietary tasks such as comparing products and deciding how much of a food to eat.

We did not find many significant or consistent effects of these label variations on the answers to the questions we asked. However, there were some notable and statistically significant differences when comparing Start Printed Page 33753the current, single-column Nutrition Facts label with the % DV on the right (the “Current label”), the single-column Nutrition Facts label with the % DV on the left (which we had proposed (the “Proposed label”)), and an alternative, single-column label with the % DV on the left (the “Alternative label”). Respondents were more accurate in identifying the grams of saturated fat and the % DV for sodium using the single-column Proposed label (% DV left) compared to the single-column Current label (% DV right). Respondents were more accurate in identifying the grams of sugars per serving using the single-column Current label (% DV right) compared to the single-column Proposed (% DV left) or single-column Alternative label (% DV left), and they were more accurate in identifying the grams of sugars per container using the single-column Current label (% DV right) compared to the single-column Proposed label (% DV left). Finally, respondents were more accurate in identifying the grams of added sugars with the single-column Proposed label (% DV left) as compared to the single-column Alternative label (% DV left) (respondents assigned to view the Current label were not asked this question). Among the Proposed labels with % DV on the left (single-column, dual-column, and dual-calorie), we found that dual-column labeling significantly improved respondents' ability to identify the amount of nutrients in the entire container. More details about the study methodology and results can be found in an Administrative File entitled “Experimental study of proposed changes to the Nutrition Facts label formats (OMB No. 0910-0774)” (Docket FDA-2012-N-1210).

The eye-tracking study, conducted in January-March, 2015, was to explore whether and to what extent most of the potential label changes as outlined in the proposed rule (80 FR 11879), in their totality, may increase consumer attention to various label elements (e.g., calories, number of servings) and lessen consumer effort in searching for specific label information. In addition, the eye-tracking study explored how the difference in the location of the percent Daily Value column may cause any changes in consumer attention to various label elements. A total of 160 English-speaking adult consumers in four cities (Washington, DC, Chicago, IL, Boston, MA, and San Francisco, CA) participated in the eye-tracking study. They were recruited by telephone and the sample was composed of some degree of diversity in socio-demographic characteristics and experience with the Nutrition Facts label. Due to an unexpected issue during recruiting, the eye-tracking study did not include any participants who were 35 years of age or younger. We asked study participants to come to a central location in each city to view mock-ups of three label formats (the Current format, the Proposed format and the Alternative format) (80 FR 11879) on a computer screen, recorded participants' eye-movement data to examine and compare the degree of attention paid to some of the possible label changes and the level of effort participants used to perform three categories of task (browsing a label, searching for specific information on a label such as the amount of sodium per serving in a product, and identifying which of a pair of products they would choose for a given purpose such as if they were to buy a healthier product for themselves). Labels used in this study were borrowed or adapted from the format study.

The eye-tracking study showed few statistically significant differences between the Current and the Proposed formats or between their variants. Among these differences, no one single format or variant consistently stood out as the “best” format in terms of degree of participant attention to label information, level of effort in using label information, or accuracy of information search or dietary choices. Many of the format differences pertained to two specific label components: (1) Sodium, carbohydrate, and protein; and (2) vitamins and minerals. There was little evidence that the Proposed format led participants to re-allocate their attention to or effort spent on different label components while browsing a label or making the dietary choices. More details about the study methodology and results can be found in an Administrative File entitled “Eye-tracking experimental study on consumer responses to modifications to the Nutrition Facts label outlined in the Food and Drug Administration's proposed rulemaking (OMB No. 0910-0774)” (Docket FDA-2012-N-1210).

For all four studies, we employed a randomized controlled experimental approach. According to the Office of Management and Budget (OMB), when Federal Agency research questions involve trying to determine whether there is a causal relationship between two variables or whether a program caused a change for participants, the Agency will need to employ an experimental or quasi-experimental design (rather than other approaches such as population surveys) to demonstrate how the study design will allow the Agency to determine causality (Ref. 6).

We chose to conduct the added sugars, the footnote, and the format studies using a Web-based approach with mock-ups of the Nutrition Facts label and footnote. The Web-based approach is quicker in administration and data collection and more efficient in including participants from many different parts of the country than other modes of data collection such as in-person interviews. The approach also reduces administrative errors in terms of assignment of labels for different participants. We used mock-ups of the label and footnote rather than real food packages because the approach helps the studies accomplish their goal of exploring consumer responses to differences in the presentation of the label rather than of a food package, which includes other components such as the front panel, the ingredient list, and imageries. The presence of these other label elements can weaken a study's ability to obtain key information on the label and the footnote to answer its research questions.

All studies used non-probability samples recruited from either members of the public at selected geographic locations with a certain degree of diversity in sociodemographic characteristics (i.e., age, gender, education, race/ethnicity), as in the eye-tracking study, or members of a commercial online consumer panel with the sample's sociodemographic characteristics matched to that of the general population, as in the added sugars, the footnote, and the format studies; in all these cases, an individual's probability of being selected into a sample was unknown. In particular, the online panel recruitment methodology was based on the opt-in approach, a non-probability sampling technique. In contrast to probability sampling in which every individual has some chance of being selected to participate in a study, not all individuals have some chances of being selected in a study. To ensure representativeness of selected participants of the population, it is necessary that everyone has a known probability and that no one is left out (Ref. 7). In addition, according to OMB's Guidance on Agency Survey and Statistical Information Collections, for the purpose of making estimates with measurable sampling error that represent a population, the sample must be selected using probability methods, where a subset of the population is chosen randomly such that each unit has a known nonzero probability of Start Printed Page 33754selection (Ref. 6). Therefore, none of the studies could provide nationally representative population estimates of consumer understanding, behaviors, or perceptions, nor could their data be considered nationally representative.

The samples of our studies were not selected using a probability sampling method and the samples came from consumers in selected locations or an opt-in online consumer panel. Therefore, based on the AAPOR and OMB guidelines, we do not consider the findings of any of the four studies projectable to the general population.

The overarching purpose of our research was to explore how and to what extent different presentations of the label and its components may affect consumer responses to the presentations. The added sugars study also was conducted to enhance our understanding of how inclusion of added sugars declarations on the Nutrition Facts label may affect how consumers perceive a product or a label and how to better educate people in using the Nutrition Facts label in general. We did not aim to use these studies to help us develop a label that will be understood by all consumers. We recognize that, regardless of how well a label is designed, there is always a certain proportion of consumers who encounter challenges in understanding and using the label.

In the Federal Register of July 27, 2015 (80 FR 44302), we added a description and our findings of these four studies to the administrative record, and we reopened the comment period for the sole purpose of inviting public comments on the eye-tracking and the format studies. We also published a supplemental proposed rule that discussed, among other things, information on the added sugars and the footnote studies (80 FR 44303). In response, many comments discussed our studies' findings, methodologies, and implications. Some comments provided new consumer research information related to issues examined in our studies, particularly the added sugars declaration. To the extent that the comments pertained to general issues involving our study results and methodologies, we address them here. We respond to comments related to research implications that are specific to the added sugars declaration or to format issues, such as the footnote, elsewhere in this document (see, e.g., part II.H.3, “Added Sugars,” and part II.Q, “Format”).

(Comment 6) While many comments referred to our research findings as part of the evidence used to support their positions, some comments suggested that we conduct additional consumer research on selected changes outlined in the proposed rule. The comments felt further research is needed because it is difficult to examine the effects of individual proposed changes based on our studies.

(Response) One of our missions is to assist in providing the public with the accurate, science-based information it needs to use medicines and foods to maintain and improve health (Ref. 8). The objective of the Nutrition Facts label is to provide nutrition information about products to help consumers in maintaining healthy dietary practices. Therefore, as part of our continuing effort to enable consumers to make informed dietary choices and construct healthful diets, we intend to, subject to program priorities and resource availability, conduct more consumer research to help enhance the usefulness and understandability of the label.

In the format and the eye-tracking experimental studies, we chose to examine the combined effects of most of the changes outlined in the proposed rule, in totality. Nevertheless, in both studies, we also examined selected individual changes where we thought original consumer research would be helpful. For example, we were interested in the effect of the location of the percent Daily Value (left or right) independent of other format elements and therefore studied that change on all three label formats (Current, Proposed, and Alternative) (in both the format and the eye-tracking studies). We also were interested in the effect of column type (single-column, dual-column, and dual-calorie) independent of other label format changes and therefore studied that on all three label formats (in the format study). We also were interested in some other possible label format changes and therefore chose to study the effects of moving the location of sodium declaration on the Proposed single column label (in the format study), as well as the declaration of voluntary vitamins and fats (voluntary vitamins, voluntary fats, and both vitamins and fats) (in both the format and the eye-tracking studies). We believed the original consumer research on these topics was more useful than on other topics. Therefore, we took a hybrid approach of studying the differences between the Current, Proposed, and Alternative formats in totality and as well as in isolation for selected individual changes.

(Comment 7) Some comments questioned whether participants in our studies generally or as assigned in individual conditions were representative of the consumers in the nation. The comments stated that such representativeness was important for assessing the effects of the proposed label format changes on consumer understanding and use of the label. In particular, the comments were concerned that the lack of such representativeness, for example, the absence of participants 35 years of age and younger in the eye-tracking study, would render results imprecise or misleading. Some comments also encouraged us to obtain nationally representative samples of the population for future consumer research studies.

(Response) While we recognize that our study samples are not nationally representative, we disagree that the use of such samples would render our findings imprecise or misleading. The purpose of our studies was to investigate and compare how different presentations of label information may cause different responses by consumers. In other words, we sought to understand the causal relationships between the label presentations and consumer response rather than develop nationally representative estimates of the prevalence or extent of various responses. Therefore, our primary consideration in the study design was internal validity (i.e., the validity of the causal relationships) rather than external validity (i.e., the extent that the results can be generalized to the population or to presentations other than those studied). Even though we focused on internal validity, we recognized that, to make the study findings more robust, it was important that the studies included participants from different segments of the population in terms of education, gender, race/ethnicity, and geographic regions. Moreover, the causal relationships we examined were not necessarily particular to certain segments of the population, and our samples included consumers with a wide range of label reading and use practices.

We doubt the absence of study participants aged 35 years and under in the eye-tracking study, which was due to an unexpected issue in recruiting participants from this segment, would have led us to reach noticeably different conclusions about the label formats. While all of the eye-tracking participants were over age 35, they were diverse in many other important factors that the literature suggests may be related to label viewing and use, such as gender, education, race/ethnicity, label reading practices, attitudes toward the label, and nutritional interest (Refs. 9-11).Start Printed Page 33755

(Comment 8) One comment said that the use of terms such as “healthy” and “healthier” in our studies represented a misuse of a defined nutrient content claim. The comment also noted that consumers have different interpretations of the term “healthy” and that these interpretations may be based on considerations that are different from those defined for the claim “healthy” in FDA regulations. In addition, the comment said that the use of the term “healthy” in the eye-tracking study was a cue to participants that there is a correct answer and the criterion was “healthy.”

(Response) In the consumer studies we conducted for informing this rulemaking, research participants were presented with and asked to respond to a Nutrition Facts label. Neither the front panel of a package nor the ingredient list was provided to participants. In our studies, the questions that asked participants to assess products' healthfulness served as one type of measure of potential consumer reactions to the tested Nutrition Facts label formats and content modifications. These questions were not connected to the regulatory meaning of a “healthy” claim, which usually appears on the front panel of a package, and we disagree that the healthfulness questions in our studies reflect “a misuse,” as asserted in the comments, which mischaracterize the purpose of the healthfulness questions in the studies we conducted.

We agree, in part, and disagree, in part, that the use of the term “healthy” in the eye-tracking study was a cue to participants that there was a correct answer and the criterion was “healthy.” We agree that this term was used in the study to prompt participants to use “healthy” as the criterion in deciding their response to the task of choosing which of two products they thought was healthier for themselves. The primary purpose of this design was to examine whether and how different label presentations would lead to differences in participant attention to various parts of a label if participants were considering a healthy dietary choice. The accuracy of choice was of less interest in this design. In addition, one of the products presented to the participants always had lower content of calories, total fat, saturated fat, sodium and sugars than the other, so the “correct” choice was unambiguous. Therefore, we do not believe that the study design would have biased the answers participants gave in this task.

(Comment 9) One comment suggested that we conduct studies that are not electronically based so that we may have more reliable data that can contribute to a more successful solution.

(Response) The comment did not explain why data collected non-electronically are more reliable than data collected electronically. We believe the Web-based approach is appropriate for the purposes of our studies. Furthermore, the comment did not assert that our study results were necessarily flawed because we collected data electronically.

(Comment 10) One comment asked us to clarify a conclusion reported in the preamble to the supplemental proposed rule that when participants viewing Nutrition Facts labels without added sugars declarations could not accurately determine the amount of added sugars in the products and that many participants who viewed Nutrition Facts labels without added sugars declarations assumed that the more nutritious products in the study had less added sugars (80 FR 44303 at 44306). The comment asked us to clarify the preceding statement because it further noted that another document, namely, “Experimental Study of Proposed Changes to the Nutrition Facts Label Formats,” stated that “respondents assigned to view the Current label were not asked to identify the grams of added sugars.” The comment questioned how we were able to arrive at the conclusion referenced in the supplemental proposed rule, reasoning that the two statements appear contradictory, as participants in the format study who viewed the Current label were not asked questions regarding the amount of added sugars.

(Response) The two statements are not contradictory because the two statements refer to different studies. Due to the different purposes of the studies, the format study did not ask participants who were assigned to the Current label about the amount of added sugars, whereas the added sugars study did. We used results from the added sugars study, rather than findings from the format study, to arrive at the conclusion stated in the supplemental proposed rule.

(Comment 11) One comment asked if we balanced the sample for demographic characteristics in the added sugars and format studies.

(Response) In the added sugars and format studies, we did balance our samples on key demographic characteristics. We selected our samples by matching their key demographic characteristics (i.e., age, gender, education, race/ethnicity, and census region) to that of the U.S. population.

(Comment 12) Some comments said that the order in which we assigned label formats to participants in the eye-tracking study could have affected the participants' responses. The comments attributed the concern to the design that showed all participants the Current label in the first set of tasks and showed the Proposed or Alternative labels randomly in the second set of tasks, rather than showing the three labels to three randomly assigned groups of participants in one set of tasks. The comments further stated that the design choice was not explained.

(Response) We acknowledge that the design could potentially have yielded different results than a design that randomly assigned participants to the three formats. We chose our design because the Current Nutrition Facts label has been on products for approximately 20 years and most, if not all, consumers have had exposure to or used the label. Consumers have likely developed their own patterns of reading and use of the Current label. Furthermore, the objective of the study was to explore whether and how much the two label formats outlined in the proposed rule would help raise consumer attention to certain label elements and reduce reading efforts. The design we chose recognized that participants would carry their own patterns of reading and using the Current label into tasks based on the Proposed and the Alternative labels. To the extent that the patterns could have varied between participants, each participant's responses to the Current label in the first set of tasks was used as her/his own baseline when we examined the responses to the Proposed or the Alternative labels in the second set of tasks. This approach, in turn, could minimize the within-subject differences between study participants and help reveal the true differential effects of label format on attention and efforts. Correspondingly, we applied the difference-in-difference analysis for this purpose. Therefore, although our design could have produced different results than a design that randomly assigned participants to the three label formats, we believe our design is appropriate under the particular circumstances.

(Comment 13) One comment said that the sample size of the eye-tracking study was too small to produce reliable empirical evidence. The comment also said that, despite the study's claim that the sample represented a wide variety of demographics, the claim is misleading because the South and Midwest regions were not included and 69 percent of the sample had a college or advanced degree.

(Response) We disagree with the comment. Our sample size calculations Start Printed Page 33756suggested that the numbers of participants included in various statistical tests were sufficient to achieve the conventional degree of statistical power of at least a medium effect size for the non-parametric analyses we conducted. This is particularly true in terms of key outcome measures during label browsing (proportion of participants who noticed a label component at least once, length of time it took participants to notice a label component for the first time, proportion of total label viewing time spent on a label component, proportion of total number of notices spent on a label component), during information search (proportion of participants who identified target information, length of time it took participants to find target information, number of notices of target information before it was found), and during product identification (length of time it took participants to enter a choice, proportion of participants who selected a given label, proportion of participants who noticed a label component at least once on either of a pair of labels, proportion of total number of notices spent on a label component, and proportion of total label viewing time spent on a label component). Additionally, as shown in the study report, the participants varied in education attained, gender, race/ethnicity, and geographic locations. Thus, contrary to what the comment said, the sample did include a wide variety of demographics.

(Comment 14) Some comments questioned certain design aspects of how the format experimental study tested the different Nutrition Facts label formats. In particular, some comments said that the overall study design was complex and that 29 labels were too many to test at once and recommended a simpler design. One comment said that questions related to calories per serving and number of servings were comparatively less important because they appeared later in the questionnaire. In addition, the comment asked why the subjective numeracy questions, which asked participants to self-rate their aptitude for working with fractions and percentages, appeared at the beginning of the questionnaire.

Other comments questioned why certain topics were not included as part of the questionnaire. For example, one comment noted that, although the term “% DV” was used in place of “% Daily Value” in the Proposed and Alternative label formats, there were no questions specific to this change in the study. The comment also asked why there were not more direct questions about serving size. In addition, one comment said that the study report did not include respondents' perceptions of each label's “helpfulness.”

(Response) The main purpose of the format study was to compare consumer use and understanding of Current, Proposed, and Alternative label formats (in their totality). Additionally, the study was designed to test the effects of the location of Percent Daily Value, column type (single- vs. dual-column vs. dual-calorie), location of sodium declaration on the Proposed single-column label, and declaration of voluntary vitamins and fats on the Proposed label. Given the priorities chosen, we carefully designed the study, including the necessary number of test labels, to ensure that the study could provide adequate statistical power to test hypotheses related to the priority topics. Thus, the overall study design and number of labels were appropriate.

Moreover, we disagree with the comment stating the questions about calories per serving and number of servings appeared later in the questionnaire and were less important. These questions appeared in the first half of the questionnaire. In addition, with respect to the comment on the order of questions related to subjective numeracy, we conducted the cognitive interviews with the subjective numeracy questions at the beginning of the study and found that the overall flow of the questionnaire was working well. We did not use these questions to screen participants in or out of the study.

With respect to comments related to questions not included in the format study, we narrowed our questions to the purpose of the study. For example, although we did not include specific questions to assess consumer understanding of the terms “% DV” and “% Daily Value, ” we assessed the effects of the location of Percent Daily Value through a question that used the definition of % Daily Value as part of the question. Specifically, we included a question asking respondents the percentage of sodium for the day in a serving of a product to see how the labels compared in helping respondents find the % Daily Value. In addition, the focus of this study was not on consumer use and understanding of the meaning of serving size and therefore did not include a specific question about it. Instead, we focused on how the label formats affected consumers': (1) Perceptions of the healthfulness and levels of nutrients of a product; (2) identification of which product in a pair of products was considered healthier; (3) accuracy of identifying the amount of nutrients per serving and per container and number of servings per container; and (4) perceptions of the understandability, usefulness, believability, and helpfulness of the label for various dietary tasks such as comparing products and deciding how much of a food to eat.

Lastly, we disagree with the comment that we did not report on respondents' perceptions of label “helpfulness.” We reported on respondents' perceptions of “helpfulness” for each set of label comparisons in the “Label preference” rating.

(Comment 15) Some comments asked us to conduct additional analyses with the format experimental study on the Nutrition Facts label formats data. Some comments requested that we provide an analysis specifically comparing the single-column Current label format to the dual-column Proposed label format. Another comment asked us to provide the results related the effect of adding absolute values to the vitamins and minerals as was found on the Proposed and Alternative labels. One comment asked why we did not include an analysis of the number of servings per container.

(Response) In the notice on Food Labeling: Revision of the Nutrition and Supplement Facts Labels; Reopening of the Comment Period as to Specific Documents (80 FR 44302), we reported on the results of our consumer study “Experimental Study of Proposed Changes to the Nutrition Facts Label Formats” related to key aspects of the changes we proposed to the format of the nutrition label. The comparisons suggested by the comments could be made through additional analyses of the data we collected. While we reported the effects of the format types within the same column type and the column-type within the same format type, we did not report the comparison between the Current single-column format and Proposed dual-column format. Such an analysis would not have provided us with information on the differences in formats in which we were most interested. However, for our own interest, we have since conducted that analysis and the results do not provide any new information related to our consideration of the format of the nutrition label. The results of this analysis seem to corroborate our main finding related to the effects of dual-column labeling compared to single-column labeling as described in table 7 of our June 30, 2015 memo to the file (Ref. 12). As reported in that memo, the Proposed dual-column label (% DV left) scored higher than the Proposed single-column label (% DV left) on the Total correct per container measure. Start Printed Page 33757Similarly, in the new comparison, the Proposed dual-column label (% DV left) scored higher than the Current single-column label (% DV right) on that same measure. The new comparison demonstrates that the Proposed dual-column (% DV left) also scored higher on the Total Correct per serving measure than the Current single-column (% DV right) label.

In addition, the purpose of our evaluation of consumer views about how high or low the product is in a vitamin or mineral when absolute values were provided, compared to a label without this information, was to understand how some consumers perceive different numbers associated with various units of measure. In response to the comment on our findings on absolute amounts, we did complete a review of that aspect of the data, and the results do not provide any new information related to our consideration of the declaration of absolute amounts for some or all nutrients (Ref. 13)). The study did not address how consumers use or understand absolute amounts for following dietary advice. Participants who viewed the different label conditions were asked to rate on a 5-point scale (1 = none or very little; 5 = a lot) how much of various nutrients they thought were in one serving of the product. Because the questions asked participants to offer their subjective perception, rather than report the absolute amount for a nutrient, no rating offered could be judged as correct or incorrect. Instead, the ratings simply provided information about how pairing the correct absolute nutrient amount with the correct % DV affected participants' perceptions.

Further analysis found that there was no difference in correctly identifying the number of servings per container between the single-column labels, the dual-column labels, or between the Current single-column (% DV right), and the Proposed dual-column (% DV left) (Ref. 13). Thus, none of these formats had any influence on how participants identified the number of servings per container, and therefore, did not provide any new information related to our consideration of the servings per container.

(Comment 16) One comment mentioned an eye-tracking study that the comment did to examine and compare participants' attention to the Nutrition Facts label either in its current format or in the proposed format. The comment stated that the study did not find significant differences between the two formats either in attention to the label in its totality or in terms of the vitamins and mineral section nor in healthful food choices made. The comment also stated that moving the percent Daily Value column to the left side of the label reduced participants' attention to the percent Daily Value information. In addition, the comment suggested that more noticeable changes to the label format, such as using traffic light colors, or descriptors, such as “high” or “low,” may have a greater impact on attention and choice than the changes we proposed.

(Response) We decline to comment on the findings because the comment did not provide sufficient details about how the study was designed and analyzed.

As for other possible changes of the label that the comment speculated might affect consumer attention and food choices, e.g., traffic light colors or text descriptors, such issues are outside of the scope of this rulemaking.

(Comment 17) One comment said that FDA's added sugars study seemed to be unduly focused on whether consumers could correctly identify added sugars and how identification of added sugars affected overall judgment of the product. The comment also stated that the study design steered participants to think specifically about added sugars throughout the survey, potentially leading them to judge the labels on the amount of added sugars.

(Response) We disagree that the design of the added sugars study unduly emphasized, or otherwise steered participants to focus on, added sugars beyond a level necessary to meet the key objectives of the study. A primary focus of FDA's added sugars study was to explore participants' understanding of Nutrition Facts labels that include added sugars declarations relative to participants' understanding of Nutrition Facts labels that do not include added sugars declarations. Although the primary objectives of the study pertained to added sugars declarations, we used a variety of measures to assess a range of participant reactions to the different labels. For example, we asked participants to evaluate foods' overall healthfulness as well as the levels of various nutrients such as saturated fat, sodium, dietary fiber, and others, in addition to added sugars.

(Comment 18) One comment noted that the added sugars study varied the experimental conditions in an unbalanced way, making it difficult to make inferences about the experimental conditions. The comment also said that we did not keep the caloric value consistent across products and, therefore, did not isolate the effect of the added sugars declarations separately from the effect of calories. The comment also noted that, in Appendix A of the FDA study report about the results of the added sugars study (Ref. 14), the “most nutritious” frozen meal had more calories, sodium, fat, and saturated fat, and lower iron and vitamin C than the “least nutritious” frozen meal.

(Response) Because the comment does not specify what was “unbalanced” in the experimental conditions and what specific inferences were therefore precluded, we do not have sufficient information to respond to this comment. We disagree that the study did not isolate the effect of added sugars declarations separately from the effect of calories because that is in fact what the experimental design achieved. In other words, by randomly assigning participants to different experimental conditions, we were able to compare participant responses in experimental conditions that were treated identically in all respects other than the display of added sugars information, thus isolating the effect of added sugars declarations from the effect of other experimental factors, such as calorie information.

Regarding Appendix A of the FDA study report (Ref. 14), there was a typographic error on the nutrition profiles for the frozen meals. Meal 1 should have been labeled the “least nutritious,” whereas Meal 3 should have been labeled the “most nutritious.” This typographic error, however, did not in any way affect the rest of the study description or reported findings.

(Comment 19) One comment noted that in table 8 of the added sugars study report (Ref. 14), the mean “usefulness” score for those viewing the control format was 3.93, whereas the mean “usefulness” score for those viewing the added sugars declaration format was 3.97. The comment stated that the report noted a significant difference between these scores and requested clarification.

(Response) The comment is incorrect. The report indicated that there was no statistically significant difference between the two means in question.

(Comment 20) One comment stated that the voluntary responses from study participants during the debriefing phase of the eye-tracking study showed that consumers had difficulties using the Current label and did not understand terms such as saturated fat and trans fat.

(Response) We disagree that the indicated responses showed that consumers have difficulties using the Current label and do not understand terms such as saturated fat and trans fat. The comment did not interpret this finding in context. The full statement in our study report is “When asked, most participants did not report having difficulties using the Current format as Start Printed Page 33758long as they knew what to look for on the label (table 25) (Ref. 15). Some, however, mentioned that they did not understand some of the information on the label, such as fats and trans fat, or had problems with the small font size of the information” (eye-tracking study memo in the re-opener, July 27, 2015, p. 25). Contrary to the comment, the report states that most of the study participants did not have difficulties using the Current label, and only some said they did not understand fats and trans fat.

C. Comments on Legal Issues

Several comments addressed legal issues. Some comments asserted that FDA cannot compel an added sugars declaration in nutrition labeling under the First Amendment. We also received comments that questioned whether our proposed requirement for an added sugars declaration and certain other proposed requirements are consistent with the requirements in the Administrative Procedure Act (APA) and our authority under the FD&C Act. In addition, we received comments questioning our authority to require and access records related to the declarations for added sugars, dietary fiber, soluble fiber, insoluble fiber, vitamin E, and folate/folic acid. Other comments raised miscellaneous legal issues.

1. First Amendment

Many comments on the proposed requirement to include an added sugars declaration on food labels related to our ability to compel such speech under the First Amendment. Some comments supported our proposed requirement for the declaration of added sugars as factual, uncontroversial information, based on the application of the First Amendment test set forth in Zauderer v. Office of Disciplinary Counsel of Supreme Court, 471 U.S. 626 (1985). Most comments raising First Amendment arguments did not support the proposed declaration, but differed in their assertion of the applicable First Amendment test. Many comments asserted that the proposed declaration did not satisfy the Zauderer test, while other asserted that it failed under the test set forth in Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557 (1980). Still others asserted that the proposed declaration was subject to, and failed to satisfy, strict scrutiny review.

(Comment 21) Some comments said the added sugars declaration is not subject to the test in Zauderer, or, even if subject, does not meet such test. Specifically, one comment stated that Zauderer does not apply to misleading statements or statements that are subject to misinterpretation. Other comments said that because there is already a declaration for total sugars and there is no material difference, or scientific rationale, for distinguishing between added and intrinsic sugars, including no “sufficient nexus to consumer health,” the declaration of added sugars is not purely factual and uncontroversial information for which the First Amendment test in Zauderer would apply. One comment stated that because added sugars are not chemically distinct from natural sugars and do not have different health effects, the declaration of added sugars would be false and misleading and the Agency could not compel it under the First Amendment. Several comments stated there are no physiological distinctions between added and naturally occurring sugars, and therefore, no connection to consumer health on which to compel such speech.

(Response) The disclosure of added sugars is factually accurate nutrition information and industry's interest in not disclosing such factual information is minimal. In Zauderer, the Supreme Court explained that “[b]ecause the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides, [a speaker's] constitutionally protected interest in not providing any particular factual information in his advertising is minimal” (see 471 U.S. at 651 (internal citations omitted)). Providing consumers the amount of added sugars in a serving of food “does not offend the core First Amendment values of promoting efficient exchange of information” and “furthers, rather than hinders, the First Amendment goal of the discovery of the truth and contributes to the efficiency of the `marketplace of ideas' ” (Nat'l Elec. Mfrs. Ass'n v. Sorrell, 272 F.3d 104, 113 through 114 (2d Cir. 2001). As a result, government requirements to disclose factual commercial speech are subject to a more lenient constitutional standard than that set forth under the Central Hudson framework (Zauderer, 471 U.S. at 651). Under Zauderer, the government can require disclosure of factual information in the realm of commercial speech as long as the disclosure provides accurate, factual information; is not unjustified or unduly burdensome; and “reasonably relate[s]” to a government interest (id.).

The required added sugars declaration readily satisfies the Zauderer test. First, the declaration of added sugars, which is being finalized in this rule, provides accurate disclosures of factual commercial information about the amount of added sugars contained in a food. The required disclosure requires only facts about the product (Am. Meat Inst. v. United States, 760 F.3d 18 (D.C. Cir. 2014) (“country-of-origin labeling qualifies as factual, and the facts conveyed are directly informative of intrinsic characteristics of the product AMI is selling”)). This required labeling will help facilitate the free flow of commercial information by providing a declaration of added sugars on food labels, and does not “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion” (Zauderer, 471 U.S. at 651 (quoting W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943))).

As for the comments stating that there is no material difference or scientific rationale for distinguishing between total sugars and added sugars, or between added sugars and naturally occurring sugars, these comments relate to our rationale for why an added sugars declaration will assist consumers to maintain healthy dietary practices and not to whether the declaration is factual and accurate information. We address these comments in part II.H.3.i. The added sugars declaration conveys factual and accurate information about the amount of added sugars in a serving of food.

Second, the required added sugars declaration is not unduly burdensome. Factual nutrition information for a number of other nutrients is currently required to be provided on packaged foods. The space that is occupied by the indented line for the “Includes `XX' g Added Sugars” declaration, below the “Total Sugars” declaration does not increase the size of the existing Nutrition or Supplement Facts label, given changes made elsewhere to the label, such as reducing the size of the footnote in the label. We also note that, as discussed in our economic analysis (Ref. 16), the cost to manufacturers is reduced from that in the proposed rule under the compliance timelines in the final rule which will allow most manufacturers to make revisions to the label during regularly scheduled label changes for their products.

Third, the required added sugars declaration is reasonably related to our government interests in promoting the public health, preventing misleading labeling, and providing information to consumers to assist them in maintaining healthy dietary practices, and thus amply satisfies the remaining element of the Zauderer test. Providing consumers with information about the added sugars content of food would promote the Start Printed Page 33759public health by ensuring they have information to assist them in meeting nutrient needs within calorie limits and to assist them in constructing a healthy dietary pattern that is limited in added sugars to reduce the risk of CVD. As explained in the preamble to the proposed rule (79 FR 11879 at 11903), Americans consume too many calories from solid fats and added sugars, which makes it difficult for consumers to meet nutrient needs within their calorie limits. The 2010 DGA noted that solid fats and added sugars contribute a substantial portion of calories (35 percent) in the American diet, with 16 percent on average from added sugars. Recommended calorie limits for most consumers, as set forth in the 2010 DGA, can only reasonably accommodate 5 to15 percent of calories from solid fats and added sugars combined (id.). While it is true that excess calorie consumption from any source can lead to weight gain, the statistics on calorie consumption from solid fats and added sugars suggest that, for many consumers, added sugars contribute to excess calorie intake. In fact, the 2010 DGA also noted that excess calories from solid fats and added sugars have implications for weight management (id.). Moreover, there is strong evidence showing that children who consume more sugar-sweetened beverages have greater adiposity (body fat) compared to those with a lower intake (id.).

The 2015 DGAC report further contributed to the scientific support for the added sugars declaration. For the first time, the 2015 DGAC conducted a systematic review of the relationship between dietary patterns and health outcomes. The DGAC found a strong association of a dietary pattern characterized, in part, by lower consumption of sugar-sweetened foods and beverages relative to a less healthy dietary pattern and reduced risk of CVD. We reviewed and considered the evidence that the 2015 DGAC relied upon, including an existing review from the Nutrition Evidence Library (NEL) Dietary Patterns Systematic Review Project as well as the NHLBI Lifestyle Interventions to Reduce Cardiovascular Risk: Systematic Evidence Review from the Lifestyle Work Group (“NHLBI Lifestyle Evidence Review”) (Ref. 17) and the associated American Heart Association (AHA)/American College of Cardiology (ACC) Guideline on Lifestyle Management to Reduce Cardiovascular Risk (“Lifestyle Management Report”) (Ref. 18). The diet quality of the general U.S. population “does not meet recommendations for vegetables, fruit, dairy, or whole grains, and exceeds recommendations, leading to overconsumption, for the nutrients sodium and saturated fat and the food components refined grains, solid fats, and added sugars.” While intake levels of added sugars still remain high at an average of 13.4 percent of calories among the U.S. population, the amount of added sugars available for the calorie ranges covered by the USDA Food Patterns (1,000 to 3,200 calories) ranges from only 4 to 9 percent (Ref. 19).

The scientific evidence, and other data and information, supports the need for an added sugars declaration to promote the public health.

In addition, the declaration of added sugars provides information that is material because, without the declaration of added sugars, consumers would not have access to information about the amount of added sugars in a serving of food. The current “Sugars” declaration on the label does not provide information on how much added sugars are present in a food, nor does the ingredient listing. The contribution of naturally occurring sugars and added sugars cannot be determined based on the “Sugars” declaration that includes both types of sugars. In addition, although ingredients are listed in order of predominance by weight (21 CFR 101.4), the ingredient information is not a substitute for the gram amount of added sugars. An ingredient listing would not enable the consumer to understand the amount of added sugars in grams and therefore, the contribution of the food to the daily dietary recommended limit of less than 10 percent of calories from added sugars.

Added sugars are found in many foods in the marketplace. Consumers are likely to be aware that added sugars are present in some sweet foods, such as sugar-sweetened beverages and candy, but in other foods, such as sweetened grains, mixed dishes, condiment, gravies, spreads, and salad dressings, the presence of added sugars is not as obvious. The majority of food sources of added sugars are beverages (excluding milk and 100 percent fruit juice), snacks, and sweets; however, 22 percent of food sources of added sugars are from other categories of foods such as grains, mixed dishes, dairy, condiments, gravies, spreads, salad dressings, fruits and fruit juice, and vegetables (Ref. 20). Small amounts of added sugars that are contributed to diet by a wide variety of foods can add up over the course of the day and can make it difficult for an individual to eat sufficient amounts of foods from the basic food groups to meet nutrient needs without exceeding the amount of calories they need in a day for weight maintenance. Because added sugars are in such a wide variety of foods in the food supply, consumers need to have information on the label so that they can consider the amount of added sugars in both foods that supply large amounts of added sugars as well as those that supply smaller amounts when constructing a healthy dietary pattern that contains less than 10 percent of calories.

Without the declared amount of added sugars, consumers would be denied access to the information they need to reduce the intake of added sugars to the recommended daily limit. As discussed in our response to comment 159, added sugars is a material fact, within the meaning of section 201(n) of the FD&C Act. Mandatory labeling that provides information about the contribution to daily caloric intake of added sugars is necessary to ensure that full, factual information is imparted to consumers so they have access to the information needed to follow a healthy dietary pattern and will not be misled in purchasing decisions because they have no information about added sugars content and further could not calculate it based on the other information on the label—total sugars content or ingredient labeling.

Furthermore, the declaration of added sugars is also reasonably related to the government's interest in providing information needed to assist consumers in maintaining healthy dietary practices by providing them with information about added sugars content in a serving of food to construct diets containing more nutrient-dense foods and reduce calorie intake from added sugars by reducing consumption of added sugars to less than 10 percent calories. Survey data show that consumers use the Nutrition Facts label and the percent Daily Value at point-of-purchase and review the nutrient contribution of food (Refs. 21-23) products. Thus, by requiring the added sugars declaration on the Nutrition Facts label, we will give consumers a tool they need to include added sugars as part of a healthy dietary pattern that avoids excess calories from added sugars and is associated with a reduced risk of CVD.

Some comments asserted that Zauderer is limited to cases where the government interest is in preventing consumer deception. Case law interpreting Zauderer clarifies that the government need not establish that compelled disclosure will prevent consumer deception for the Zauderer standard to apply. In American Meat Institute, the court held that “[t]he language with which Zauderer justified its approach . . . sweeps far more Start Printed Page 33760broadly than the interest in remedying deception” 760 F.3d 18, 22 (D.C. Cir. 2014) (en banc). In reaching the conclusion that the applicability of Zauderer extends beyond regulations in which the government is attempting to mandate a disclosure to remedy deception, the court focused on the “material differences between disclosure requirements and outright prohibitions on speech,” (id. at 21 (quoting Zauderer, 471 U.S. at 650)), the fact that “the First Amendment interests implicated by disclosure requirements are substantially weaker than those at stake when speech is actually suppressed,” (id. (quoting Zauderer, 471 U.S. at 652 n.14)), and the fact that “[b]ecause the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides, [a] constitutionally protected interest in not providing any particular factual information in his advertising is minimal,” (id. (citing Zauderer, 471 U.S. at 651)). The court found that, “[a]ll told, Zauderer' s characterization of the speaker's interest in opposing forced disclosure of such information as `minimal' seems inherently applicable beyond the problem of deception” (id.). Several other circuits concur (see Pharm. Care Mgmt. Ass'n v. Rowe, 429 F.3d 294, 297 through 298, 310, 316 (1st Cir. 2005); N.Y. State Rest. Ass'n v. N.Y. City Bd. of Health, 556 F.3d 114, 133 (2d Cir. 2009); Nat'l Elec. Mfrs. Ass'n v. Sorrell, 272 F.3d 104, 115 (2d Cir. 2001) (affirming use of the “reasonable-relationship Zauderer standard when the compelled disclosure at issue . . . was not intended to prevent `consumer confusion or deception' ”); Disc. Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509, 556 (6th Cir. 2012) (holding that “Zauderer' s framework can apply even if the required disclosure's purpose is something other than or in addition to preventing consumer deception”)).

(Comment 22) One comment stated the proposed declaration of added sugars violates the First Amendment because the requirement is not reasonably related to a legitimate regulatory interest. Another comment asserted that an added sugars declaration would not assist consumers in maintaining healthy dietary practices. Another comment stated that even if the declaration of added sugars was purely factual and not controversial, the declaration is “unjustified and unduly burdensome” (citing Zauderer, 471 U.S. at 651), where there is no scientific evidence that added sugars contributes to obesity or heart disease and there is no recommended daily allowance.

(Response) As explained in our response to comment 21, the required added sugars declaration assists consumers in maintaining healthy dietary practices and is reasonably related to our government interests in promoting the public health, preventing misleading labeling, and providing information to consumers to assist them in maintaining healthy dietary practices. Furthermore, we disagree with the comment suggesting that the added sugars declaration is unjustified and unduly burdensome because “no scientific evidence exists to support FDA's assumption that added sugars contribute to obesity or heart disease” and due to the lack of a DV for added sugars. To the extent the comment suggests we were relying on a specific nutrient-disease relationship between added sugars and obesity or heart disease in the general population, the comment misunderstands our rationale for the declaration. We stated that our scientific basis for the added sugars declaration, in fact, differed from our rationale to support other mandatory nutrients related to the intake of a nutrient and risk of chronic disease, a health-related condition or a physiological endpoint (see 79 FR 11879 at 11904). Although we recognized that U.S. consensus reports do not support a cause and effect relationship between added sugars consumption and risk of obesity or heart disease (id.), we considered, in the preamble to the proposed rule (79 FR 11879 at 11902 through 11908) and the supplemental proposed rule (80 FR 44303 at 44307 through 44309), the contribution of added sugars to healthy dietary patterns, and the impact to public health from such patterns. In the latter, we included a proposed DV for the added sugars declaration.

(Comment 23) One comment stated that the disclosure of added sugars is disclosure of factually accurate nutritional data and analogized the disclosure to the disclosure of allergens under the Federal Food Allergen Labeling and Consumer Protection Act (FALCPA). The comment said that Congress imposed requirements for nutrient and allergen disclosures so consumers can make “safer, healthier, and more informed choices about the foods they eat” and not because food labels were deceptive without the information. The comment cited Zauderer and Nat'l Elec. Mfrs. Ass'n v. Sorrell, 272 F.3d 104, 113 through 114 (2d Cir. 2001) for support that industry's interest in not disclosing such factual information is minimal. The comment also stated that we articulated a rational basis for requiring consumers to maintain healthy dietary practices (citing N.Y. State Rest. Ass'n v. N. Y. City Bd. of Health, 556 F.3d 114, n.21 and at 136 (2d Cir. 2009), and Pharm. Care Mgmt. Ass'n v. Rowe, 429 F.3d 294 (1st Cir. 2005)).

(Response) We agree that the disclosure of added sugars is factually accurate nutrition information and that industry's interest in not disclosing such factual information is minimal. We also agree that Congress imposed nutrition labeling requirements to help consumers have access to information that would assist them in choosing healthy diets. Congress prescribed that foods subject to the nutrition-label requirements are “deemed to be misbranded” if they do not provide nutrition labels as required (see section 403 and 403(q) of the FD&C Act). Congress also has indicated that labeling's failure to provide certain material information is to be taken into account in determining whether such labeling is misleading (see section 201(n) of the FD&C Act). We do not respond to the portion of the comment on Congress' intent with respect to allergen labeling under FALCPA because it is outside the scope of this rule.

(Comment 24) One comment stated the added sugars labeling is not to provide purely factual information to prevent consumer deception, but to shape consumer behavior.

(Response) As explained in the preamble to the proposed rule (see 79 FR 11879 at 11905), the added sugars declaration will provide information to consumers on the amount of added sugars in a serving of food. We recognize that added sugars can be a part of a healthy dietary pattern when not consumed in excess amounts. The purpose of the added sugars declaration is not to discourage the consumption of the class of foods that contain added sugars, but rather to increase consumer understanding of the quantity of added sugars in foods to enable the consumer to understand the relative significance of the contribution of added sugars from a serving of a particular food in the context of the total daily diet. A consumer may or may not elect to reduce the consumption of certain foods with added sugars, based on his or her individual need and dietary choice. The declaration provides purely factual information so that consumers will have access to the information they need about the amount of added sugars in a food, and that they are not able to obtain from the current nutrient declaration of “Sugars” or “Total Sugars” alone. Start Printed Page 33761Through our consumer education, we plan to help consumers understand the changes we are making in the final rule and how the information can assist them to include a variety of foods in their daily diet so that they understand how to achieve a healthy dietary pattern.

(Comment 25) One comment stated the added sugars declaration would compel misleading labeling because it would mislead consumers into believing that a sweetened dried cranberry is less healthy than a naturally sweetened dried fruit, due to the cranberry's added sugar content.

(Response) The comment seems to refer to the consumer research data related to consumer perceptions of “healthful” that we discuss in our response to comment 184. We do not agree that the results in our added sugars study or the results submitted by comments on consumer perceptions support the assertion that an added sugars declaration would compel misleading labeling. As we have stated, a consumer's belief, opinion, or previous exposure to information about added sugars and their impact to health, whether based on science or not, may affect how a consumer may view a food with an added sugars declaration. These factors can influence how a consumer perceives the factual statement about the amount of added sugars on a label and may result in some consumer confusion and misunderstanding about the food containing the added sugars that is not based on the declaration itself, but instead, on the consumer's own misperceptions. For example, a consumer may erroneously think a food, which can be part of a healthy dietary pattern, is not “healthful” because it contains some amount of added sugars. This is likely not unique to added sugars. Consumers obtain information from a number of sources, previous experiences, or in response to specific health concerns. For example, there is a large body of data and information on other nutrients to limit, e.g., saturated fat, cholesterol, and sodium, which may influence consumer perception of how “healthful” a food may be. A consumer may choose to avoid all or most sources of food with sodium or saturated fat present, or present in a certain amount, based on their beliefs or specific dietary needs.

A consumer's lack of understanding about what added sugars are or how to use the added sugars declaration to limit added sugars intake does not mean the factual declaration of the amount of added sugars in a serving of food is misleading. Consumers need more, not less, information about the added sugars content of a food to learn how to understand and use the information in planning a healthy dietary pattern. Furthermore, the term “unhealthful” when describing a food with added sugars is a relative term and must be viewed in the context of the day's total dietary intake. For example, a food with a high amount of added sugars may be understandably viewed as “unhealthful” because, if consumed, it may result in overconsumption of added sugars for the day. We need to correct the misperceptions consumers may have about added sugars and provide them with information they need to include a variety of foods in their diet, as part of a healthy dietary pattern, so they can understand how to include added sugars in their diets at levels less than 10 percent of calories to avoid overconsumption. We intend to educate consumers on the changes to the food label, and in particular, to the declaration of added sugars so that consumers can expand their food choices to include nutrient dense foods, such as cranberries with added sugars, and still achieve a healthy dietary pattern.

(Comment 26) Another comment stated that an added sugars declaration and percent DV will compel false information on the label because the amount of added sugars will need to be overstated on yeast-leavened products, in violation of the First Amendment.

(Response) We disagree that an added sugars declaration on yeast-leavened products will need to be overstated and therefore compel false information on the label. We allow for reasonable deficiencies in foods generally for label amounts of calories, sugars, added sugars, saturated fat, trans fat, cholesterol and sodium, within current good manufacturing practices (see final § 101.9(g)(6)). Furthermore, as we have stated in our response to comment 200, we recognize that labeling of added sugars in products that undergo fermentation and non-enzymatic browning may not be exact, but that manufacturers of most products that participate in these reactions should be able to provide a reasonable approximation of the amount of added sugars in a serving of their product based on information in the literature and their own analyses. To the extent a manufacturer has reason to believe the amount of added sugars in a serving of food may be significant enough to impact the label declaration by an amount that exceeds the reasonable deficiency acceptable within current manufacturing practice, and is unable to reasonably approximate the amount of added sugars in a serving of food, the manufacturer may submit a petition to request an alternative means of compliance.

(Comment 27) One comment stated that, even if the added sugars declaration is not false or misleading, Zauderer still would not apply to the requirement to include a % DV for the declaration of added sugars because the % DV is not designed to prevent consumer fraud or deception. The comment stated it is not clear whether consumers know what the % DV represents. The comment suggested that the mere declaration may lead a consumer to consider added sugars as “inherently dangerous.”

(Response) We disagree with the suggestion that, if the % DV is not designed to prevent consumer fraud or deception, Zauderer would not apply. As we explained in our response to comment 21, the Zauderer test is not limited in this way. Moreover, we are unclear as to the comment's basis for its assertion that consumers would consider added sugars as “inherently dangerous.” The comment provided no data or information for its assertion. We consider that view, should it exist, to be a consumer misperception. We plan to address consumer misperceptions about added sugars as part of our consumer education effort.

(Comment 28) Some comments asserted that the test in Zauderer is not applicable to the added sugars declaration and that Central Hudson provides the appropriate test with which to evaluate the declaration under the First Amendment.

(Response) While we disagree that the required added sugars declaration should be subject to the Central Hudson standard, it would nonetheless be Constitutional under the standard set forth in Central Hudson. If the Central Hudson standard were applicable to the required added sugars declaration, we would need to identify a “government interest [that] is substantial,” establish that “the regulation directly advances the government interest asserted,” and show that the regulation “is not more extensive than is necessary to serve that interest” (Central Hudson, 447 U.S. at 566). Under the Central Hudson test, we have the discretion to “judge what manner of regulation may best be employed” to serve the substantial government interest (see City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 416 n.12 (1993) (citing Bd. of Trustees v. Fox, 492 U.S. 469, 480 (1989))).

(Comment 29) Some comments stated there is no substantial government interest for which we can require an added sugars declaration under Central Start Printed Page 33762Hudson because there is no material difference between added and intrinsic sugars in food. One comment stated that “scientific studies have not sufficiently shown that FDA has a substantial interest in preventing consumer intake of added sugars.” Another comment stated that FDA's interest in compelling an added sugars declaration is not substantial where there is no causal relationship between added sugars and risk of chronic disease, but only evidence of a strong association between a dietary pattern characterized, in part, by a reduced intake of sugar-sweetened foods and beverages and a reduced risk of CVD. The comment further stated that, just as there is no substantial government interest for added sugars, there is no such interest for total sugar content or for the percent DV for added sugars; the comment stated there is no material health or safety difference between a food with added sugars as compared to naturally occurring sugars.

(Response) We disagree that we have no substantial government interest to support the declaration of added sugars. We have an interest in promoting the public health, preventing misleading labeling, and providing information to consumers to assist them in maintaining healthy dietary practices. Promoting the public health is part of our mission to ensure, in part, that foods are properly labeled (section 1003 of the FD&C Act (21 U.S.C. 393)). In addition, for over 20 years, we have had a substantial government interest in ensuring that consumers have access to information about food on the nutrition label that is truthful and not misleading, and an interest in ensuring that nutrition information will assist consumers in maintaining healthy dietary practices. Based on the more recent scientific evidence on reducing added sugars consumption as part of a healthy dietary pattern, we have a substantial interest in ensuring the accuracy and completeness of added sugars information in labeling. Our government interests are substantial and supported as such (Rubin v. Coors Brewing Co., 514 U.S. 476, 485 (1995) (recognizing that the government has a substantial interest in promoting the health of its citizens); see also, Am. Meat Inst. v. U.S. Dep't Agric., 760 F.3d 18 (D.C. Cir. 2014) (en banc) (finding the context and history of disclosures in labeling by USDA one of several interests to support a substantial government interest under Central Hudson); N.Y. State Rest. Ass'n v. N.Y. City Bd. of Health (556 F.3d 114, 134 (2d Cir. 2009) (finding the promotion of “informed consumer decision-making so as to reduce obesity and the diseases associated with it” through posting of calorie content information on menus to be a substantial government interest)).

We also disagree that there is no material difference between added and intrinsic sugars for purposes of achieving a healthy dietary pattern to avoid excess discretionary calories from added sugars and reduced risk of chronic disease. As we discuss in our response to comment 143, there is a strong association with respect to the consumption of a healthy dietary pattern characterized, in part, by a lower intake of sugar-sweetened foods and beverages, and a reduced risk of CVD, compared to less healthy dietary patterns with higher intakes of added sugars. Foods that are composed of naturally occurring or intrinsic sources of sugars, e.g., fruits and vegetables, are distinct from the category of sugar-sweetened foods and beverages and are not food categories recommended to be reduced as part of the healthy dietary pattern. Furthermore, evidence and conclusions from the 2010 DGA support the conclusion that consumption of excess calories from added sugars can lead to a less nutrient-dense diet. With respect to the comments related to the scientific support for the added sugars declaration, we disagree that a causal relationship must be shown between added sugars and a risk of chronic disease (e.g., a dose-response relationship between a nutrient and risk of disease) before we can make the requisite finding under section 403(q)(2)(A) of the FD&C Act that added sugars would assist consumers in maintaining healthy dietary practices (see part II.H.3.a). No such dose-response requirement exists in section 403(q) of the FD&C Act or in implementing regulations. Furthermore, the comment's characterization that “scientific studies have not sufficiently shown that FDA has a substantial interest in preventing consumer intake of added sugars” mischaracterizes the purpose of the nutrient declaration. We are not “preventing” consumer intake of added sugars. Instead, we are providing factual, accurate information to the consumer about the amount of added sugars in serving of food to enable consumers to understand and use the information to make informed dietary choices and construct their daily diets.

(Comment 30) One comment said that consumer interest alone does not make information material and consumer interest is not a substantial government interest, and therefore, the added sugar declaration cannot be compelled under the First Amendment.

(Response) We are not requiring the declaration of added sugars based on consumer interest. We are requiring an added sugars declaration to provide information to assist consumers with food purchases that can reduce their intake of added sugars and enable them to achieve a healthy dietary pattern. A healthy dietary pattern, characterized in part by lower amounts of added sugars than that found in the U.S. general population's dietary pattern, is strongly associated with a reduced risk of chronic disease (Disc. Tobacco & Lottery, Inc. v. United States, 674 F.3d 509, 564 (6th Cir. 2012) (finding a reasonable relationship between tobacco warning statements and a government interest in “promoting greater public understanding of the risks”); Sorrell, 272 F. 3d at 115 (finding a rational relationship between the state's goal of reducing mercury contamination and required label disclosures on mercury-containing light bulbs). The required declaration of added sugars is consistent with the First Amendment and our authority in sections 403(a), 201(n), 403(q)(2)(A) and 701(a) of the FD&C Act.

(Comment 31) Some comments questioned how an added sugars declaration would directly advance the government interest related to consumer health. One comment stated that, even if FDA had a substantial government interest, FDA has not shown that the declaration directly advances that interest (citing Central Hudson, 447 U.S. at 566) and to a “material degree” (citing Florida Bar v. Went For It, Inc., 515 U.S. 618, 626 (1995)) because FDA has not shown there would be any “discernable effect on consumer behavior” and that FDA must demonstrate that an added sugars declaration is related to “its desired change in consumer behavior or an improvement in consumer health.” Another comment cited Edenfeld v. Fain, 507 U.S. 761 at 770 through 771 (1993), stating that FDA will not be able to carry the burden to “demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.” The comment stated that we have not and cannot demonstrate a concrete harm in the absence of a mandatory added sugars declaration.

(Response) The added sugars declaration directly advances our government interests in promoting consumer health, preventing misleading labeling, and assisting consumers in maintaining healthy dietary practices. As we explain in our response to comment 137, Americans consume too many calories from solid fats and added sugars, which replace nutrient-dense foods and make it difficult for consumers to achieve the recommended Start Printed Page 33763nutrient intake while controlling their calorie intake. Consumers can only reasonably accommodate 5 to 15 percent of calories from solid fats and added sugars combined, yet the 2015 DGAC found intakes from added sugars alone at approximately 13.4 percent. Excess calories from solid fats and added sugars have implications for weight management. Moreover, there is strong evidence showing that children who consume more sugar-sweetened beverages have greater adiposity (body fat) compared to those with a lower intake.

The scientific evidence shows that, although there is moderate evidence of an association with healthy dietary patterns (with lower added sugars) compared to less healthy patterns and measures of increased body weight or obesity, type 2 diabetes, cancer, and congenital anomalies, there is a strong association of a dietary pattern characterized, in part, by lower consumption of sugar-sweetened foods and beverages, relative to a less healthy dietary pattern found in the general U.S. population, and reduced risk of CVD. Thus, the scientific review supports that a healthy dietary pattern that is characterized by a lower consumption of added sugars, not a lower consumption of naturally occurring sugars, is strongly associated with a reduced risk of CVD.

The declaration of added sugars would provide consumers with information about the amount of added sugars in a food product that is currently absent from the label. The failure to disclose the amount of added sugars in a product is an omission of a material fact. The reasonable consumer would expect that the information on the label would give them the most important nutrition information, relative to the need to construct a healthy dietary pattern that limits the excess consumption of added sugars. The omission of added sugars runs counter to that expectation, impeding rational consumer choice. A healthy dietary pattern, when compared to the current dietary pattern in general U.S. population, is associated with a reduced risk of CVD and avoids excess discretionary calories from added sugars and solid fats. Consumers need information about added sugars in all foods, not just those that contain a certain threshold level or that are found in select food categories (e.g., beverages) to reduce overall intake of added sugars in the diet. Consumers can use the declared amount of added sugars to compare products and make food selections to achieve a healthy dietary pattern that is associated with a reduced risk of CVD. Therefore, the added sugars declaration is required to ensure that the labeling is not misleading.

Consumers need to understand the amount of added sugars in food to understand the relative contribution of the food to total dietary intake. The percent DV provides information on how much added sugars in a serving of food contributes to the recommended limit of less than 10 percent calories from added sugars. As we explain in our response to comment 21, consumers use the Nutrition Facts label at point-of-purchase and review the nutrient contribution of food products to help them choose products and compare products. By providing this information, consumers can have the information they need to achieve a healthy dietary pattern that is characterized by lower levels of added sugars through a lower total consumption of sugar-sweetened foods and beverages. A healthy dietary pattern is also characterized by a higher consumption of vegetables, fruits, whole grains, low-fat dairy, and seafood, and lower consumption of red and processed meat and refined grains. In addition, the declaration of added sugars on the nutrition label would assist consumers in maintaining healthy dietary practices by providing them with information necessary to meet the key recommendations to construct daily diets containing nutrient-dense foods and reduce calorie intake from added sugars by reducing consumption of added sugars to less than 10 percent calories. Thus, by providing this information on the food label, we can directly and materially advance an interest in promoting public health, preventing misleading labeling, and assisting consumers in maintaining healthy dietary practices. We have sufficient support to demonstrate that the declaration directly advances our government interests, including scientific support for the added sugars declaration, evidence to support consumer use of the label, and expert opinion to support consumer understanding of the added sugars declaration based on changes made to the proposed declaration (see Florida Bar v. Went For It, Inc., 515 U.S. 618, 628 (1995) (justifying speech restrictions “by reference to studies, and anecdotes pertaining to different locales altogether . . . or even, in a case applying strict scrutiny, to justify restrictions based solely on history, consensus, and `simple common sense' ”) (citations omitted)).

We disagree with the comment's assertion that we must show a “discernable effect on consumer behavior” and that we must demonstrate that an added sugars declaration is related to a “desired change in consumer behavior or an improvement in consumer health.” Achieving specific changes in consumer behavior and/or health are not the government interests we assert, and the law does not require that these specific showings be made. We note that, to the extent the comment suggests we need a connection to consumer health for purposes of the added sugars declaration, we have described that relationship in the proposed rule, the supplemental proposed rule, and the final rule.

(Comment 32) One comment acknowledged the strong association between a dietary pattern characterized, in part, by a reduced intake of sugar-sweetened foods and beverages and reduced CVD risk. However, most comments questioned how an added sugars declaration would directly advance our government interest to assist consumers to maintain healthy dietary practices and focused on health outcomes for which they say there is only moderate or no direct evidence of an association between added sugars consumption and a disease or health-related condition. For example, some comments stated there is no evidence that added sugars has an impact on obesity, and therefore, a declaration would not assist consumers to maintain healthy dietary practices. Another comment said that a link to added sugars intake and health based on the 2010 DGA is flawed, citing to a statement in the preamble to the proposed rule that added sugars do not contribute to weight gain more than any other source of calories (79 FR 11879 at 11904) even though the 2010 DGA recommendation is to reduce the intake of calories from added sugars. Other comments focused on the evidence in Chapter 6 of the DGAC Report, which the comments describe as “moderate” evidence, to support a specific relationship between added sugars and disease risk. The comments appeared to suggest that we are relying only on evidence in Chapter 2 Part D of the 2015 DGAC Report to support our basis for the added sugars declaration, and not the moderate evidence in Chapter 6. One comment suggested the moderate evidence provides a lower level of scientific certainty to support a reasonable fit between the disclosure and FDA's government interest.

(Response) The comments focusing on evidence related to a specific relationship between added sugars intake in the general U.S. population and a direct link to obesity to support a mandatory declaration of added sugars Start Printed Page 33764may have overlooked the discussion in the preamble to the proposed rule (79 FR 11879 at 11904). We are not establishing or relying on a direct link to obesity from added sugars intake for the general population. There is adequate evidence that the U.S. population consumes excess calories from added sugars, above the discretionary calories permitted within a recommended caloric intake (id. at 11903). The 2010 DGA supports the need for an added sugars declaration to provide the information necessary for consumers to identify the contribution of discretionary calories from added sugars, which are consumed in excess by the general U.S. population based on recommended calorie limits, to their daily diet in order to reduce their intake of added sugars to within recommended calorie limits. While it is true that excess calories from any source leads to weight gain, we know that the U.S. general population consumes added sugars in excess of the recommended limit of less than 10 percent of calories. Moreover, we have additional support for the declaration of added sugars, as lower intakes of sugar-sweetened foods and beverages were part of a healthy dietary pattern that was found to be strongly associated with a decreased risk of CVD (see part II.H.3.a and II.H.3.b). Furthermore, we disagree we are mischaracterizing the evidence on which we rely because we do not cite to moderate evidence in the 2015 DGAC. Although the evidence concerning a cause and effect relationship between added sugars intake and reduced risk of a disease is still emerging, there is a strong association found for a healthier dietary pattern, characterized in part by a reduced intake of overall added sugars compared to less healthy dietary patterns like those consumed by the general U.S. population, and reduced risk of CVD.

(Comment 33) One comment said that we have not identified any direct relationship between the added sugars declaration and an interest in helping consumers to maintain healthy dietary practices by reducing added sugars consumption. The comment questioned the strong association found between dietary patterns and risk of CVD in the 2015 DGAC Report, based on criticisms by FDA of menu modeling to establish DRVs in the preamble to the proposed rule (79 FR 11895 at 11896).

(Response) To the extent the comment asserts we must have a direct relationship between a nutrient and a reduced risk of disease before the nutrient is eligible for mandatory labeling under section 403(q)(2)(A) of the FD&C Act, we disagree for the reasons we set forth in our response to comment 58. Furthermore, the analysis that was conducted related to dietary patterns and health outcomes that is discussed in Chapter 2 of the 2015 DGAC Report is not based on modeling of dietary patterns, but rather on a review of diet quality studies where dietary quality indices were used to assess how adherence to a healthy dietary pattern is associated with health outcomes (Ref. 19). Therefore, statements that we have made in the past related to food pattern modeling do not apply to the evidence that we considered related to healthy dietary patterns that are characterized, in part, by lower intakes of sugar-sweetened foods and beverages relative to less healthy dietary patterns and CVD risk.

(Comment 34) One comment stated that consumer research demonstrates that, while an added sugars declaration may allow consumers to determine the amount of added sugars in a product accurately and compare products based on the amount of added sugars and percent DV contribution, the evidence does not demonstrate that consumers would maintain healthy dietary practices or that consumer understanding of a product's healthfulness is improved. Another comment suggested that we must demonstrate that a % DV disclosure for added sugars would have a “direct and material effect on consumer behavior.” The comment said there is no evidence that consumers understand the % DV and how to use the information for the added sugars declaration.

(Response) We interpret the comments as questioning how an added sugars declaration (and percent DV) would directly advance our government interest to assist consumers to maintain healthy dietary practices. The comments may misunderstand our authority under section 403(q)(2)(A) of the FD&C Act. Section 403(q) of the FD&C Act gives us the discretion to require a nutrient declaration when we determine that the information is necessary to assist consumers to maintain healthy dietary practices. The determination is based on a review of the scientific evidence and other available data and information related to the need for the nutrition information to be available to the consumer as part of the Nutrition Facts label. The declaration places the information in the hands of the consumer so that the consumer can make a judgment about whether to purchase a given food based on the nutrient content and can understand the relative significance of the information in the context of a total daily diet (see our response to comment 33). Our government interest does not rest on the notion that there must be some percent of consumers who we know will modify their diet to consume more or less of a nutrient before we can compel a label declaration for that nutrient or the percent DV. Consumers do not know the amount of added sugars in foods without a required declaration. Furthermore, the comment may misunderstand that the nutrition information on Nutrition Facts label is to assist consumers in understanding the relative significance of the information in the context of a total daily diet and does not require a threshold level of a change in consumer behavior before the nutrient can then be required on the nutrition label. The final rule does not define when a food is “healthy” based on the amount of added sugars in a serving of the food; instead, through the Nutrition Facts label, we are providing information about the amount of added sugars so that consumers can understand the relative significance of a food's contribution to the total added sugars intake in the context of the total daily diet and use that information to decide what foods to choose as part of that dietary intake for the day.

(Comment 35) One comment stated the added sugars declaration must be understandable to directly advance the government interest to assist consumers to maintain healthy dietary practices. The comment said the added sugars study provides only weak evidence that consumers understand the declaration. The comment cited our statements in the supplemental proposed rule and study memorandum that acknowledge that a number of participants were confused about the distinction between sugars and added sugars on the labels studied and that some participants identified a more nutritious product with more added sugars as less healthy.

(Response) We considered the results from our consumer research on the added sugars declaration, in addition to consumer research on the declaration submitted in comments (see part II.B.5). As a result of the findings showing that some consumers may be confused by the juxtaposition of total sugars followed by added sugars indented below total sugars, we revised the declaration to address those concerns. We now include the word “Total” before “Sugars” and use the phrase “Includes “XX” g Added Sugars” indented below “Total Sugars” to mitigate the observed misunderstanding by some consumers to add the total and added sugars values together. With the change to the declaration, we expect that consumers will understand that Start Printed Page 33765added sugars are a component of total sugars (see our response to comment 188). We also considered results showing that some consumers may perceive products with more added sugars as less healthy (see our responses to comments 55 and 184) and plan to address consumer perceptions as part of our consumer education. The factual declaration of the amount of added sugars in a serving of food is not misleading based on consumer perceptions about whether a food with added sugars is “unhealthful.”

(Comment 36) One comment said that we must identify the public harm caused by not declaring added sugars, demonstrate how the declaration will alleviate this harm, and show this is the least intrusive approach to comport with a company's constitutional protection of its right to free speech. The comment also said that we must show there is a different or greater harm from added sugars that is not present for the same level of naturally occurring sugars.

(Response) We discuss how the added sugars declaration comports to the Central Hudson analysis, including why added sugars are distinguished from naturally occurring sugars, in our response to comment 29. Central Hudson requires the regulation to be no more extensive than necessary to serve the asserted government interest (Central Hudson, 447 U.S. at 566). This standard does not require the government to employ “the least restrictive means” of regulation or to achieve a perfect fit between means and ends (see Bd. of Trustees v. Fox, 492 U.S. 469, 480 (1989)). Instead, it is sufficient that the government achieve a “reasonable” fit by adopting regulations “ `in proportion to the interest served.' ” (id. (quoting In re R.M.J., 455 U.S. at 203)). The requirement of narrow tailoring is satisfied “so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation” (United States v. Albertini, 472 U.S. 675, 689 (1985)). The added sugars declaration will give consumers a tool they need to include added sugars as part of a healthy dietary pattern—information that would not be readily available absent the regulation.

(Comment 37) One comment took exception to the fact that the requirement for added sugars labeling is for all foods and not limited to a smaller subset of foods that account for the majority of added sugars consumption (e.g., sweetened beverages), and thus, is “more extensive than necessary to serve [the government] interest” (citing Central Hudson, 447 U.S. at 566).

(Response) We disagree. The required added sugars declaration is no more extensive than necessary to serve its purpose (see Central Hudson, 447 U.S. at 566). Again, this standard does not require the government to employ “the least restrictive means” of regulation or to achieve a perfect fit between means and ends, but rather a “reasonable” fit by adopting regulations “`in proportion to the interest served'” (Bd. of Trustees v. Fox, 492 U.S. 469, 480 (1989)). Moreover, the required disclosure does more to advance our interests to promote public health, prevent misleading labeling, and assist consumers in maintaining healthy dietary practices than a disclosure that was limited to a subset of foods. Added sugars are used in a variety of foods from all food categories. For example, although some foods, such as sugar-sweetened beverages, may contain more added sugars relative to other beverages, that does not mean that a consumer is going to consume only those sugar-sweetened beverages that contain the most added sugars, and therefore, would only need added sugars information on the foods that contain some higher threshold of added sugars. Furthermore, the percent DV of less than 10 percent of calories from added sugars pertains to all calorie sources of added sugars, not just those categories that contain a certain higher amount of added sugars per serving of food relative to other foods in the same or similar food category. Therefore, a consumer needs to understand the contribution of all sources of added sugars in his or her diet to reduce calories from added sugars to less than 10 percent of the total. Those foods with fewer added sugars consumed over the course of a day can add up to levels that may meet or exceed 10 percent of total calories. Moreover, for some food categories, consumers may not even recognize the food as one that contributes added sugars to the diet (e.g., condiments, sauces, canned fruits and vegetables, and some snacks), much less, the relative contribution. Limiting the required disclosure to only certain foods that exceed a certain level of added sugars before a declaration is required would undermine our efforts in getting information needed for making informed food purchases into the hand of consumers to enable them to achieve a healthy dietary pattern. In addition, the required disclosure is not unduly burdensome in that it is a factual disclosure confined to one line on the Nutrition Facts label and will enable consumers to understand the information in the Nutrition Facts label and how the contribution of added sugars from a food fits into the daily diet.

(Comment 38) One comment questioned whether the use of the Nutrition Facts format was too restrictive under the First Amendment for conveying nutrition information about a product, noting that Congress did not prescribe a particular format or means by which to convey nutrition information. The comment stated that section 403(q) of the FD&C Act provides that a food will be misbranded “unless its label or labeling bears nutrition information.” The comment suggested that nutrition information conveyed through labeling that does not physically accompany the product, such as at the point of purchase, on the Internet, or through a smart phone application, would be a less prescriptive means of conveying the required information.

(Response) To the extent the comment suggests a completely different approach to conveying nutrition information that is separated from, and not on, the food label itself, by use of a smart phone, Internet, or posted somewhere in the store, the comment provided no data or information to support why those approaches would assist consumers as well as, if not better, than having the information on the label itself at point-of-purchase. Not all consumers own smart phones or computers, or even if they did, would necessarily take these electronic devices to the store to research the nutrient profile of each food they are considering to purchase. It also is unclear how added sugars and other nutrient information in the Nutrition Facts label would be accessed by posting in the aisles or somewhere else in the store for the number of foods stocked within each area or how a consumer would find the information that matched the product picked up off the shelf. The Nutrition Facts label provides product-specific information that is readily accessible to the consumer at point-of-purchase in the store, when consumers would use the information to understand the nutrient content and compare products for purposes of deciding whether to purchase the product. Because the comment's suggested alternative would be less effective than the required disclosure in advancing the relevant government interests, we disagree with the comment.

(Comment 39) One comment stated the compelled disclosure of added sugars is more extensive than necessary to serve “a speculative interest by FDA.” The comment suggested that an Start Printed Page 33766interest to help consumers select diets that are nutrient rich, where foods high in solid fats and added sugars do not displace food with greater nutrient density, could be served by consumer education and not a listing of added sugars.

(Response) We disagree our interest is speculative. We have substantial government interests in promoting the public health, preventing misleading labeling, and assisting consumers to maintain healthy dietary practices. These interests are supported by the science and our 20-plus year history of the use of the Nutrition Facts label to convey accurate, truthful, non-misleading information about the nutrient content of a food to the consumer at point-of-purchase. We do not consider consumer education alone to be a reasonable alternative to the declaration on the label because consumers need to know the amount of added sugars in specific foods, not simply general concepts, and to understand how to incorporate added sugars into a healthy dietary pattern. Providing the gram amount of added sugars in a serving of food on the label, which is the same information provided for other nutrients on the label, is sufficiently narrowly tailored to advance our interests in providing nutrition information to promote the public health, prevent misleading labeling, and assist consumers in maintaining healthy dietary practices. The nutrition information will be readily available to consumers at point-of-purchase which is the time and place that is critical to a consumer's purchasing decision and considering the relative significance of the information in the context of their total daily diet. Because the proposed alternative would be less effective than the required disclosure in advancing the relevant government interests, we disagree with the comment.

(Comment 40) One comment stated an added sugars declaration does not seem to fit the requirements under Central Hudson to directly advance the government interest asserted or not be more extensive than necessary to serve that interest because: (1) The current label already provides information on nutrient density and total sugar content; (2) there is no consumer research showing that consumers understand the meaning and role of added sugars; (3) there is no nutritional or physiological difference between added and naturally occurring sugars; and (4) other sources of excess calories would contribute to weight gain.

(Response) We have explained, in our response to comment 39, why the added sugars declaration directly advances our substantial government interests. We also explained, in our response to comment 39, why the added sugars declaration is not more extensive than necessary to serve our government interests. We disagree that the current label provides information on nutrient density because, although the current label provides information on total sugar content, it does not provide information on added sugars content which is information consumers need to understand to avoid the excess contribution of empty calories. To the extent the comment suggests that we would need consumer research showing that consumers understand the meaning and role of added sugars before we require a declaration of added sugars, we disagree. The FD&C Act does not require us to establish that consumers have a level of understanding about a nutrient before we can compel disclosure of that nutrient on the label. In fact, the label is the means by which the consumer can access new nutrition information that we have determined is necessary to maintain healthy dietary practices.

(Comment 41) One comment stated that added sugars declaration is subject to strict scrutiny (citing Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015)) because of discrimination between added and naturally occurring sugars. The comment stated that the two categories of label declarations for added sugars and naturally occurring sugars is a content-based regulation of speech. In particular, the comment stated that cranberries and other fruit to which sugar is added are nutritionally comparable to fruit that contains only natural sugars, so a declaration of added sugars would mislead consumers into believing the products without added sugars are healthier. The comment said there is no compelling government interest, and the declaration is not narrowly tailored, where the added sugars are listed in the ingredient statement. The comment said a footnote could be provided to clarify the sugars are added for palatability.

(Response) We disagree that the added sugars declaration is subject to strict scrutiny under Reed v. Town of Gilbert. Reed involved a town sign code, which involves “quintessential public fora” (McLaughlin v. City of Lowell, 2015 U.S. Dist. LEXIS 144336 (D. Mass. Oct. 23, 2015)). Reed does not apply to commercial speech, which is the only type of speech at issue here (see, e.g., CTIA—The Wireless Ass'n v. City of Berkeley, Cal., Civ. No. 15-2529 (EMC), 2015 U.S. Dist. LEXIS 126071 *31 through 33 (N.D. Cal. Sept. 21, 2015) (“[A]s the Supreme Court has emphasized, the starting premise in all commercial speech cases is the same: The First Amendment values commercial speech for different reasons than non-commercial speech, and nothing in its recent opinions, including Reed, even comes close to suggesting that that well-established distinction is no longer valid.”); Chiropractors United for Research & Educ., LLC v. Conway, 2015 U.S. Dist. LEXIS 133559 (W.D. Ky. Oct. 1, 2015) (“Because the New Solicitation Statute constrains only commercial speech, the strict scrutiny analysis of Reed is inapposite.”); San Francisco Apt. Ass'n v. City & Cnty. of San Francisco, 2015 U.S. Dist. LEXIS 150630 (N.D. Cal. Nov. 5, 2015) (“Reed is inapplicable to the present case, for several reasons, including that it does not concern commercial speech.”); Cal. Outdoor Equity Partners v. City of Corona, 2015 U.S. Dist. LEXIS 89454 (C.D. Cal. July 9, 2015) (“Reed does not concern commercial speech”); Timilsina v. West Valley City, 2015 U.S. Dist. LEXIS 101949 (D. Utah June 30, 2015) (“Because the parties agree this case concerns commercial speech and the Central Hudson applies, the Court need not address how the regulation would fare under [Reed]”)). Moreover, Reed involved review of “content-based restrictions on speech” (Reed, 135 S. Ct. at 2231). Here, we are requiring the disclosure of factual information, which is properly reviewed under the standards articulate in Zauderer and its progeny (Sorrell, 272 F.3d at 113 to 114 (“Commercial disclosure requirements are treated differently from restrictions on commercial speech because mandated disclosure of accurate, factual, commercial information does not offend the core First Amendment values of promoting efficient exchange of information or protecting individual liberty interests. Such disclosure furthers, rather than hinders, the First Amendment goal of the discovery of truth and contributes to the efficiency of the 'marketplace of ideas.' ”)). The added sugars declarations, together with the other nutrient declaration on the nutrition label, contribute to the marketplace of ideas by providing information that may help consumers to use and understand the amount of added sugars, along with the other nutrients listed, in constructing a healthy dietary pattern to reduce the risk of chronic disease and achieve a calorie intake that limits excess intake of empty calories from unhealthy types of fats and from added sugars.

With respect to the comment's assertion that products with different Start Printed Page 33767added sugars content would mislead consumers into believing the products without added sugars are healthier, we explain in our discussion of consumer research in part II.H.3.g why the findings of some consumer perceptions about what is “healthy” does not mean that the added sugars declaration is misleading. Furthermore, we also explain, in our response to comment 21, why the ingredient listing is not sufficient to convey the amount of added sugars in serving of a product. With respect to the use of a footnote or other language on the palatability of a food without added sugars, we are not setting forth requirements in this final rule on labeling information about this practice, and any labeling information must be truthful and not misleading. Lastly, as we explain in our response to comment 28, we disagree that we do not have a substantial government interest or that the added sugars declaration is not narrowly tailored.

(Comment 42) One comment stated that an added sugars declaration is inconsistent with the First Amendment because it would send a message with which the manufacturer disagrees. The comment said it is the total number of calories consumed, not the type of calories consumed, which determines the potential for weight gain. Another comment stated that a strict scrutiny test should be applied to the added sugars declaration because the declaration is “an inherently subjective, judgmental statement in the guise of a purely factual declaration.” The comment stated that the declaration is “designed to convey the unsupported opinion that added sugars are somehow more adverse to health than sugars that occur naturally.” Another comment stated that an added sugars declaration would compel food producers to tell their consumers that avoiding added sugars is a meaningful factor in maintaining healthy dietary practices, which producers do not believe to be true, and requires a higher level of scrutiny to support (citing United States v. United Foods, 533 U.S. 405, 411 (2001)). Some comments said that we have conceded that the declaration is not meaningful based on statements we made in the preamble to the proposed rule (79 FR 11879 at 11903 through 11904) about added sugars, e.g., that added sugars are not chemically different than natural sugars, and there is lack of scientific agreement on the effects from added sugars to health outcomes and contribution to weight gain compared to other calorie sources.

(Response) The declaration of added sugars is an assertion of fact in the context of a commercial communication; it is not subjective, judgmental, or a matter of opinion. Courts have rejected similar arguments from industry attempting to assert that heightened scrutiny should be applied to regulation of commercial speech (see, e.g., N.Y. State Rest. Ass'n v. N.Y. City Bd. of Health, 556 F.3d 114, 134 (2d Cir. 2009) (rejecting argument that menu calorie content disclosures be subject to strict scrutiny review); Discount Tobacco, 674 F.3d at 525-27 (rejecting argument that strict scrutiny applied to tobacco warnings, as a compelled “ ‘subjective and highly controversial' marketing campaign expressing its disapproval of their lawful products”)). In contrast, United Foods (533 U.S. 405 at 411), which concerned the payment of subsidies for speech that was disfavored, has no bearing on the nutrient declaration for added sugars.

The scientific evidence on which we rely relates to dietary patterns and impact to health from consumption of a healthy dietary pattern characterized, in part, by a reduced added sugars intake. Added sugars are distinguishable from naturally occurring sugars when consumed as part of a healthy dietary pattern compared to the current U.S. general population's dietary pattern. Indeed, the declaration of added sugars is not based on a specific relationship between added sugars and disease risk, contrary to what the comments suggest. We made that distinction clear in the preamble to the proposed rule (79 FR 11879 at 11904) when we stated that our rationale to support an added sugars mandatory declaration in labeling is different from our rationale to support other mandatory nutrients to date which generally relates to the intake of a nutrient and a risk of chronic disease.

2. Administrative Procedure Act

(Comment 43) One comment said that we do not have the required reasonable basis to mandate the added sugars declaration because, unlike the differences between saturated fats and trans fat, there is no physiological distinction between added and naturally occurring sugars, no analytical methods to distinguish these sugars, inadequate evidence to support a direct contribution of added sugars to obesity or heart disease, and that our rationale does not relate to the intake of a nutrient and risk of chronic disease, health-related condition or physiological endpoint. Another comment cited specific statements we made related to added sugars and their link to obesity and other statements in which we have stated there is inadequate evidence to support the direct contribution of added sugars to obesity, suggesting that this is a reversal of the Agency position.

(Response) We disagree that we do not have a sufficient scientific basis to support an added sugars declaration. As we stated in our response to comment 21, a physiological distinction between added and naturally occurring sugars is not a prerequisite to mandatory declaration under section 403(q)(2)(A) of the FD&C Act. Nor is an analytical method specific to added sugars a prerequisite to mandatory declaration under this section (see the discussion in our response to comment 45). Furthermore, we explained in the preamble to the proposed rule that our scientific basis for the added sugars declaration for the general population, in fact, differed from our rationale to support other mandatory nutrients related to the intake of a nutrient and risk of chronic disease, a health-related condition or a physiological endpoint (see 79 FR 11879 at 11904). Rather than relying on a causal relationship between added sugars to obesity or heart disease, we considered, in the preamble to the proposed rule (79 FR 11879 at 11902 through 11908) and the preamble to the supplemental proposed rule (80 FR 44303 at 44307 through 44309), the contribution of added sugars as part of healthy dietary patterns and the impact to public health from such patterns. Thus, the comments erroneously focused on the nutrient, added sugars, and its independent relationship to health in the general population rather than our rationale for mandatory declaration of added sugars as part of a healthy dietary pattern.

(Comment 44) One comment stated the added sugars declaration appears to be arbitrary and capricious because the rationale to support the added sugars declaration is dramatically different from the rationale to support other mandatory nutrients and the added sugars content of a food does not always reflect a food's nutritional value (such as yogurt) or convey information that is not otherwise available from the total sugars declaration. Another comment suggested that the supplemental proposed rule does not provide adequate notice and explanation for the departures from established precedent and must acknowledge the change and provide a reasoned explanation for the change (citing Prevor v. FDA, 895 F. Supp. 2d 90 (D.D.C. 2012) and Paralyzed Veterans of Am. v. DC Arena L.P., 117 F.3d 579, 586 (D.C. Cir. 1997)).

(Response) We disagree with the comments that suggest the required added sugars declaration is arbitrary and capricious under the APA. For each nutrient we require be declared on the nutrition label, we consider whether the nutrient will assist consumers in Start Printed Page 33768maintaining healthy dietary practices, consistent with our statutory authority in section 403(q) of the FD&C Act. We consider the scientific evidence related to that standard for each nutrient we consider for mandatory declaration. The scientific evidence on which we rely to make that determination for a particular nutrient may differ. With respect to added sugars, we considered the evidence related to a healthy dietary pattern that is associated with a reduced risk of CVD, consumption data showing that Americans are consuming too many calories from added sugars, evidence showing that it is difficult to meet nutrient needs within calorie limits if one consumes too many added sugars, and evidence showing that increased intake of sugar-sweetened beverages is associated with greater adiposity in children. Specifically, we explained that we were reconsidering whether to require the declaration of added sugars based on new data and information, including U.S. consensus reports and recommendations related to the consumption of added sugars, a citizen petition, and public comments (79 FR 11879 at 11902). We explained our rationale for requiring an added sugars declaration in the preambles to the proposed rule (79 FR 11879 at 11904 and the supplemental proposed rule (80 FR 44303 at 44308)). The evidence in the 2015 DGAC report, through the use of studies on diet quality, supports evidence of a strong association between a dietary pattern characterized, in part, by a reduced intake of sugar-sweetened foods and beverages and a reduced risk of CVD. We also set forth in the supplemental proposed rule our rationale for use of the reference amount for added sugars of less than 10 percent total daily caloric intake (id.). Thus, we provided the requisite showing, consistent with our obligations under the APA, for why an added sugars declaration is necessary to assist consumers in maintaining healthy dietary practices (see Home Care Ass'n of Am. v. Weil, 799 F.3d 1084 (D.C. Cir. 2015) (stating the APA imposes “no special burden when an Agency elects to change course” and the “reasoned explanation” under the APA for an alternative approach includes an Agency awareness of the change in position and good reasons for the change (citing FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009)). We are not limited to one body of scientific evidence when exercising our discretion under section 403(q)(2)(A) of the FD&C Act; instead, we have broad discretion to consider the new scientific evidence and how nutrition information may impact human health.

Moreover, with respect to the comment that the added sugars declaration conveys no more information than one could obtain from the total sugars declaration, we disagree. As we explain in our response to comment 161, the added sugars declaration does convey information that is not otherwise available from the total sugars declaration. Furthermore, it is not clear why the comment suggests the added sugars content does not reflect a food's nutritional value (such as yogurt). The added sugars declaration reflects the contribution of that nutrient in a serving of the food. We agree that a food, such as yogurt, can provide nutritional value to the overall diet even though it contains added sugars. The added sugars declaration is one piece of information on the nutritional label to help inform the consumer about how the food fits into the overall dietary pattern so that the consumer can use that information to help achieve a healthy dietary pattern. The cases cited by the comment (Prevor v. FDA, 895 F. Supp. 2d 90 (D.D.C. 2012) and Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579, 586 (D.C. Cir. 1997) (overruled in part by Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199 (2015))) involve questions related to interpretative rules. Therefore, we do not consider them to be applicable to this final rule, which is a legislative rule, for which we provided notice and an opportunity to comment.

(Comment 45) Some comments stated that the declaration of added sugars is inconsistent with FDA's approach on whether to declare other nutrients, specifically stearic acid, acetic, propionic and butyric acids, dietary fiber, and carbohydrates, and cited statements in the preamble to the proposed rule related to chemically distinct nutrients. The comments stated that our rationale for not labeling these other substances separately is based on the fact that these are not chemically distinct or are based on whether analytical techniques are available to verify the declared amount on the label. The comments said that we did not explain why we departed from our traditional approach for the added sugars declaration, and, therefore, our decision regarding the declaration of added sugars appears arbitrary and capricious under the APA (citing Atchison, T. & S. F. R. v. Witchita Board of Trade, 412 U.S. 800 (1973) and Allentown Mack Sales and Serv. v. NLRB, 522 U.S. 359 (1998)).

(Response) We disagree with the suggestion that we only consider requiring the mandatory declaration of a nutrient where the nutrient is chemically distinct from other nutrients or when there is an available analytical method to test the presence of the nutrient in a food. The comment cited particular statements in the preamble to the proposed rule in which we made reference to a nutrient's chemical definition, composition, or structure. However, the statements cited in the comment do not support the propositions asserted by the comment. We consider the need for a mandatory declaration based on whether the nutrient is necessary to assist consumers to maintain healthy dietary practices, consistent with our authority under section 403(q)(2)(A) of the FD&C Act, whereas the statements cited by the comment concern characteristics of nutrients that are not necessarily related to whether the nutrient can assist consumers to maintain healthy dietary practices. For example, as part of our discussion of stearic acid in the preamble to the proposed rule (79 FR 11879 at 11894), we did not agree to declare stearic acid as a nutrient rather than as part of the saturated fat declaration because saturated fat intake is based on scientific evidence related to the intake of all saturated fatty acids, including stearic acid, and the potential effects to human health from changes in the dietary intake of stearic acid on the risk of CVD remain unclear (79 FR 11879 at 11894 through 11895). Furthermore, we discussed, in response to a request in a petition requesting FDA to define total fat to exclude acetic, propionic, and butyric acids, based on the chemical differences of these acids from other fatty acids comprising total fat, that these acids were not chemically distinct based on the reasons set forth by the petitioner (79 FR 11879 at 11893). We further explained that the petitioner did not explain why we should define total fat based on physiological differences, even if such differences existed (id.). Thus, we examine, on a case-by-case basis, whether a nutrient is necessary to assist consumers to maintain healthy dietary practices.

Similarly, the statements the comment included for dietary fibers and carbohydrate classification are taken out of context and do not support the comment's proposition. We discussed the reasons for separating dietary fiber from the definition of total carbohydrate and determined, for several reasons, it was not necessary to change the calculation of carbohydrate by difference (79 FR 11879 at 11900). We also referenced the 2007 ANPRM in Start Printed Page 33769which we were considering whether to classify carbohydrates by chemical definition or physiological effect (79 FR 11878 at 11901). While we recognized that analytical methods would distinguish carbohydrates based on chemical structure and not physiological effects, we determined that given the various components of total carbohydrate and different types of physiological effects of these components that, for the class of total carbohydrates, a definition based on physiological effects would not be a better approach than a chemical definition (id.). We did not consider an analytical method to be a necessary prerequisite to the declaration for carbohydrate. Thus, we have not limited ourselves to the need for a chemical distinction for a nutrient before we would consider the mandatory declaration of the nutrient under section 403(q)(2)(A) of the FD&C Act. For these reasons, we disagree with the comment's apparent assertion that we departed from a traditional approach related to requiring a nutrient be chemically distinct for mandatory labeling, and that therefore the added sugars declaration is somehow arbitrary and capricious under the APA.

(Comment 46) One comment stated that we would violate section 706(2) of the APA if we finalized a declaration for added sugars because the proposed declaration of added sugars was not reasoned decision making, where we did not complete the consumer study before proposing the required declaration. The comment cited references that would analogize this situation to one where an Agency relied on a defective or discredited study to support a rule (e.g., St. James Hospital v. Heckler, 760 F. 2d 1460, 1468 (7th Cir. 1985); Almay, Inc. v. Califano, 569 F.2d 674 (D.C. Cir. 1977), or where the study authors did not agree with the use of the research for a particular application relied on by an Agency (Humana of Aurora, Inc. v. Heckler, 753 F.2d 1579 (10th Cir. 1985)). With respect to the consumer research we conducted on added sugars, the comment asserted that, “FDA in this situation recognized that such a study was essential” and that without a consumer study, the factual basis for the requirement would be lacking (citing Motor Vehicle Mfrs. Ass'n of United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). The comment also said we failed to provide an adequate notice and opportunity for comment on the results of the consumer research study because the comment period would be closed before the study is completed (citing Doe v. Rumsfeld, 341 F. Supp. 2d 1 (D.D.C. 2004); Service v. Dulles, 354 U.S. 363 (1957); Conn. Light & Power Co., v. Nuclear Regulatory Com, 673 F.2d 525, 530 through 531 (D.C. Cir. 1982); and American Iron & Steel Inst. v. OSHA, 939 F.2d 975, 1009 through 1010 (D.C. Cir. 1991); Small Refiner Lead Phase-Down Task Force v. Environmental Protection Agency, 705 F.2d 506, 540 through 541 (D.C. Cir. 1983); Sierra Club v. Costle, 657 F.2d 298, 398 (D.C. Cir. 1981)).

(Response) We disagree that a consumer study related to the added sugars declaration is required before we can finalize a requirement to compel the declaration under section 403(q)(2)(A) of the FD&C Act. Our discretionary authority to require an added sugars declaration can be exercised if we determine the declaration is necessary to assist consumers to maintain healthy dietary practices. Our rationale for the declaration is supported by sufficient evidence set forth in the 2010 DGA and the 2015 DGAC Report, in part, related to the role of sugar-sweetened foods and beverages as part of a healthy dietary pattern compared to less healthy dietary patterns, and the relationship between healthy dietary patterns and risk of chronic disease. In addition, the evidence and conclusions from the 2010 DGA support that consumption of excess calories from added sugars can lead to a less nutrient-dense diet and that current consumption data show that Americans are consuming too many calories from added sugars. Moreover, there is strong evidence that greater intake of sugar-sweetened beverages is associated with increased adiposity in children. Furthermore, section 403(q) of the FD&C Act does not require us to complete a consumer study before we can make the finding in section 403(q)(2)(A) of the FD&C Act to require a nutrient declaration.

We explained why we were conducting consumer research in the preamble to the proposed rule. We discussed, in the context of the placement of added sugars on the label, our plan to conduct a consumer study to help enhance our understanding of how consumers would comprehend and use the new information and to publish the results of the consumer research when available (79 FR 11879 at 11952). We published the results of our consumer research in a supplemental proposed rule to present those study findings (80 FR 44303; July 27, 2015), and provided the raw data for the consumer study in response to requests for such data (80 FR 54446; September 10, 2015). Contrary to what the comment suggested, the consumer research studied consumer reactions to the declaration to help inform our future educational efforts related to food labeling and was not conducted for the purpose of determining whether we had the requisite scientific basis to declare added sugars under section 403(q)(2)(A) of the FD&C Act (80 FR 44303 at 44306). We consider consumer research helpful to understand how to best utilize our consumer education efforts when changes to the label are made. Moreover, in response to our findings from the “Experimental Study on Consumer Responses to the Nutrition Facts Labels with Declaration of Amount of Added Sugars” that showed some participants were confused by the total sugars declaration when added sugars was indented below total sugars, we considered these findings and comments received on the consumer research in making changes to the declaration of added sugars to reduce the potential for consumer confusion. With respect to the comment that we failed to provide an adequate notice and opportunity for comment on the results of the consumer research study, we note that this comment was submitted in response to the proposed rule published in March 2014, before the publication of the consumer research results in July 2015 and raw data in September 2015. Therefore, the cases to which the comment cites, concerning the need for notice and opportunity for comment, are moot. Furthermore, we are not relying on a defective or discredited study to support a rule or one where the study authors do not agree with the use of the research for a particular application relied on by the Agency and therefore do not need to address the cases cited in comments on these issues.

(Comment 47) One comment asserted that we did not provide an adequate legal justification for why we were not relying on the IOM DRI Report with respect to developing a DRI for added sugars and instead relying on evidence in the DGAC Report.

(Response) We disagree that we did not provide an adequate explanation for the DRV for added sugars, nor did the comment further explain the basis for its assertion. We explained why we were not relying on the IOM DRI Report in the preamble to the proposed rule (79 FR 11879 at 11906). Specifically, we explained that the IOM did not establish a DRI, such as a UL, for added sugars, nor did the IOM define an intake level at which an inadequate micronutrient intakes occur. Thus, there was no level for added sugars, based on the IOM review, on which we could rely for a reference amount. In the preamble to the Start Printed Page 33770supplemental proposed rule (80 FR 44303 at 44308), we discussed the availability of the data and information from the 2015 DGAC Report to support a DRV for added sugars to below 10 percent of total energy intake based on the modeling of dietary patterns, current added sugars consumption data, and a published meta-analysis on sugars intake and body weight (id.). We tentatively concluded that the scientific information in the 2015 DGAC Report provided the basis on which we could rely to support a DRV reference point for the added sugars declaration (id.). We respond to comments in this final rule to further explain the basis for the added sugars declaration under our authority in section 403(q)(2)(A) of the FD&C Act.

(Comment 48) One comment questioned whether we provided stakeholders with an opportunity to provide meaningful comments. Specifically, the comment seemed to object to the period provided for comment on the raw data for the consumer studies, and the limited scope of the comment on the supplement proposed rule to the issues presented in that document. The comment stated that we have no authority to propose rules in a “piecemeal fashion” and must consider comments that address the impact of the final rule as a whole.

(Response) We consider the comment periods provided for the supplemental proposed rule (80 FR 44303; July 27, 2015) and the raw data on the consumer studies (80 FR 5446; September 10, 2015), to October 13, 2015 to be sufficient. The comment did not provide any basis for why the comment period did not provide a sufficient time during which meaningful comments could be submitted, nor did the comment provide a basis to support its assertion that we lack authority to issue a supplement to the proposed rule. The supplemental proposed rule (80 FR 44303) provided notice and an opportunity for comment on relevant new data and information for consideration in the final rule, including the findings of the consumer study on the added sugars declaration and footnote. Thus, there was adequate notice and an opportunity for comment on the issues. We considered the comments we received in response to the proposed rule and supplemental proposed rule when developing the final rule.

(Comment 49) One comment suggested that we are ignoring the section of the DGAC Report that focuses on scientific studies about the specific relationship between added sugars and CVD, for which there is moderate evidence, and referred to this as a “blatant abuse of discretion.” The comment stated that we are mischaracterizing the evidence related to a specific relationship between added sugars and CVD as “strong” rather than “moderate” and described this outcome as arbitrary and capricious and an abuse of discretion in violation of the APA. Other comments stated that the “moderate” evidence does not meet our standard of “significant scientific consensus” or the “factual basis” standard required (citing Motor Vehicle Mfrs Ass'n v. State Farm Mut. Auto. Ins Co., 463 U.S. 29 (1983) and A.L. Pharma, Inc. v. Shalala, 62 F.3d 1484, 1491 (D.C. Cir. 1995)). One comment further stated the specific relationship between added sugars and CVD is moderate, and as such, the evidence is mixed and inconclusive and therefore such a change in policy will be overturned (citing AFL-CIO v. Dole, 745 F. Supp. 18, 21 (D.D.C. 1990) rev'd on other grounds, 923 F.2d 182 (DC Dir. 1991)).

(Response) The comments may not have considered or appreciated the evidence on which we rely for the added sugars declaration. There is scientific evidence demonstrating a strong association between a healthy dietary pattern characterized, in part, by a lower amount of sugar-sweetened foods and beverages and the reduced risk of CVD. The scientific evidence in Chapter 6 of the 2015 DGAC report, concerns an entirely different body of evidence based on an independent relationship of added sugars with chronic disease risk. The comments do not address the evidence of the strong association between a healthy dietary pattern (including, with regard to added sugars, lower intakes of sugar-sweetened foods and beverages), relative to less healthy dietary patterns, and reduced risk of chronic disease, set forth in Chapter 2 Part D of the 2015 DGAC report. Our reliance on this scientific evidence does not mean we abused our discretion, nor does it mean we are mischaracterizing the evidence. We are not relying on the scientific evidence with regard to the independent relationship of added sugars and specific chronic diseases as the basis to require an added sugars declaration, and we have described the basis for our required added sugars declaration and the evidence we rely on in the preamble to the proposed rule (79 FR 11879 at 11902 through 11905), the supplemental proposed rule (80 FR 44303 at 44307 through 44308) and this final rule.

(Comment 50) One comment asserted the DGAC report violates the National Nutrition Monitoring and Related Research Act of 1990 (NNMRRA) because there were no scientific studies reviewed by the DGAC on consumer comprehension of an added sugars declaration, and therefore, the recommendation for added sugars labeling was not based on a preponderance of the scientific and medical knowledge required under section 301(a) of the NNMRRA for information and guidelines in the report. The comment stated that FDA's reliance on the DGAC report for added sugars labeling therefore violates section 706(2) of the APA in that it lacks a factual basis and is thus arbitrary and capricious in violation of the APA. The comment also stated that the HHS and USDA violated section 5 of the Federal Advisory Committee Act (FACA) in creating the 2015 DGAC because the committee was not “fairly balanced.” The comment said that our reliance on the DGAC Report is arbitrary and capricious in violation of section 706(2) of the APA. Another comment said the proposed added sugars declaration and DRV violate FACA because the DGAC Report and the science supporting the requirements are not sufficiently reliable or objective.

(Response) We disagree that the required declaration of added sugars violates section 706(2) of the APA based on independent authorities in NNMRRA and FACA with respect to the 2015 DGAC Report. The mandatory added sugars declaration in nutrition labeling is based on our authority in section 403(q)(2)(A) of the FD&C Act and not on the separate and independent authority in NNMRRA. Contrary to what the comments stated, we considered and relied on the scientific evidence in the DGAC Report for the purpose of determining whether an added sugars declaration will assist consumers in maintaining healthy dietary practices, and did not rely on a DGAC Report recommendation. The comment concerning whether the 2015 DGAC Report violated section 301(a) of NNMRRA is separate and distinct from our authority under section 403(q)(2)(A) of the FD&C Act and outside the scope of this rule.

Moreover, with respect to the comments expressing concerns about section 5 of FACA in relation to the 2015 DGAC Report, we reviewed the available scientific evidence to determine whether to require an added sugars declaration, based on our authority in section 403(q)(2)(A) of the FD&C Act. We included, in our review, evidence from the 2015 DGAC Report, the 2010 DGA, NHANES data on U.S. consumption patterns, and other data and information. The DGAC selection and review process is an interagency Start Printed Page 33771process that includes HHS and USDA and is outside the scope of this rule.

(Comment 51) One comment stated that we should further consider the effects of the definitions (such as dietary fiber) and Daily Values on existing nutrient content and health claims authorized under section 403(r) of the FD&C Act. The comment stated that claims for certain foods that currently qualify for a claim may no longer qualify, and the comment stated it anticipated that restrictions may include claims that are part of brand names and trademarks, and therefore, implicate First Amendment and Fifth Amendment “takings” issues. The comment further stated that, without a thorough evaluation of these “collateral implications” the final rule “would fall short of administrative law requirements” (citing Prometheus Radio Project v. FCC, 373 F.3d 372, 420-21) (3d Cir. 2004) and Sprint Corp. v. FCC, 315 F.3d 369, 377 (D.C. Cir. 2003)).

(Response) In the preamble to the proposed rule (79 FR 11879 at 11889), we recognized that changes to the list of nutrients declared on the label and changes to the RDIs and DRVs of nutrients could affect whether some foods that contained a nutrient content or a health claim prior to the publication of the final rule would no longer meet a defined term or eligibility requirement to make the claim. We stated that we plan to evaluate the impact of any changes in a final rule on other FDA regulations and address them, as appropriate, in a future rulemaking (id.). To the extent the comment suggests we must consider impacts to food products that currently declare certain non-digestible carbohydrates as dietary fiber, but that may no longer be able to declare these carbohydrates as dietary fiber based on the definition of “dietary fiber” in the final rule, we provided notice and an opportunity to comment on the proposed definition and have responded to comments in this final rule.

To the extent the comment suggests we must enlarge the scope of this rulemaking to consider what specific food products may no longer qualify for a nutrient content or health claim, or may include claims that are part of brand names, we disagree. The final rule concerns changes to the nutrient declarations in the Nutrition Facts label and Supplement Facts label under our authority in section 403(q) of the FD&C Act. The final rule does not include within its scope nutrient content claim or health claim regulations we promulgated under our independent authority in section 403(r) of the FD&C Act. Our decision on what RDI or DRV we select for a nutrient for purposes of nutrition labeling to ensure the information will assist consumers in maintaining healthy dietary practices is distinct from, and would precede a decision on, how to define a term for a nutrient content claim or establish an eligibility criterion for a health claim. Therefore, we are not obligated to consider changes to the requirements for nutrient content claims or health claims in this final rule (see Home Box Office, Inc. v. FCC, 567 F.2d 9, 36 n. 58 (D.C. Cir. 1977), cert. denied, 434 U.S. 829 (1977) (“In determining what points are significant, the `arbitrary and capricious' standard of review must be kept in mind . . . only comments which, if true, raise points relevant to the agency's decision and which, if adopted, would require a change in an agency's proposed rule cast doubt on the reasonableness of a position taken by the agency.”)).

For example, we have established a number of defined terms for nutrient content claims based on the percent of the DV provided in a reference amount customarily consumed for food that bears the claim (e.g., “high” and “good source” in 21 CFR 101.54). Any changes we may consider to the definition of those terms based on changes made to the DV in this final rule would be in a separate rulemaking, consistent with our authority in section 403(r) of the FD&C Act. We plan to evaluate the impact of any changes on other FDA regulations and address, as appropriate, those impacts in a future rulemaking. Furthermore, the comment suggesting there may be restrictions in using claims that include brand names and trademarks did not provide any further explanation. To the extent there are such circumstances, those would be considered in a separate rulemaking where we consider such claims. Lastly, the cases cited by the comment concern the distinction between an interpretive rule and a legislative rule and are inappropriate to this final rule, which is a legislative rule for which we provided notice and an opportunity to comment.

3. Federal Food, Drug, and Cosmetic Act

We are updating the Nutrition Facts label and Supplement Facts label, as set forth in this final rule, consistent with our authorities in sections 403(q), 403(a)(1) and 201(n), and 701(a) of the FD&C Act.

(Comment 52) Some comments questioned whether the declaration of added sugars to limit consumption of added sugars was a material fact under sections 403(a) and 201(n) of the FD&C Act. One comment stated that we must demonstrate that the absence of a declaration of added sugars on the nutrition label would be misleading to consumers.

(Response) The declaration of added sugars is a material fact under sections 403(a) and 201(n) of the FD&C Act, as we explain in our response to comment 159. Under section 201(n) of the FD&C Act, labeling is misleading if it fails to reveal facts that are material with respect to consequences which may result from the use of the article to which the labeling relates under the conditions of use prescribed or under conditions of use as are customary or usual.

Here, we have determined that the evidence shows that healthy dietary patterns associated with a decreased risk of chronic disease are lower in added sugars, consumption of too much added sugars can impact the nutrient density of the diet, and consumption of sugar-sweetened foods and beverages are associated with increased adiposity in children. Furthermore, the scientific evidence supports limiting added sugars intake to less than 10 percent of total calories. We note that this limit was adopted as a recommendation in the 2015-2020 DGA. The current intake of discretionary calories from added sugars in the U.S. population is excessive. The excess intake of calories from added sugars displaces the calories from other foods that are needed as part of a healthy dietary pattern in order to reduce the risk of CVD. Without information on the amount of added sugars in a serving of a food, consumers would not be able to determine the amount of added sugars in particular foods, and therefore would not have the information they need to place a particular food in the context of their total daily diet to construct a healthy dietary pattern that contains less than 10 percent of calories from added sugars. Thus, the amount of added sugars in a food is a material fact with respect to the consequences which may result from the use of the article under the conditions of use prescribed or under conditions of use as are customary or usual.

Moreover, section 403(q) of the FD&C Act gives us the authority to require nutrient declarations that we have determined provide information that will assist consumers to maintain healthy dietary practices.

(Comment 53) Some comments said the declaration of added sugars is itself misleading. The comments highlighted statements in the preamble of the proposed rule that there is no physiological difference between added sugars and those sugars that are intrinsic to food and there is no scientifically supported quantitative intake Start Printed Page 33772recommendation for added sugars on which a DRV for added sugars can be derived and that U.S. consensus reports have determined that inadequate evidence exists to support the direct contribution of added sugars to obesity or heart disease (79 FR 11879 at 11905 through 11906). Another comment stated that because added sugars are not chemically distinct from natural sugars or have different health effects, the declaration of added sugars would be false and misleading.

(Response) We disagree that the declaration of added sugars is misleading. The statutory basis for requiring an added sugars declaration is whether the Secretary, and by delegation, FDA, determines that the nutrient should be included in the labeling of food for the purpose of providing information regarding the nutritional value of such food that will assist consumers in maintaining healthy dietary practices. The statutory framework does not require that the nutrient be linked in isolation to any particular chronic diseases nor does it specify that the nutrient must be physiologically unique. Furthermore, we have determined that there is a scientifically supported basis for requiring a DRV of 10 percent for added sugars. We address questions as to the specific scientific basis for that DRV in part II.H.3. The inclusion of this DRV and the other issues described by the comment do not make the declaration of added sugars misleading. The declaration of added sugars is a factual statement of the amount of this nutrient in the product.

(Comment 54) One comment said that the declaration of added sugars, as applied to cranberry juice products that are nutrient dense and sweetened for palatability, presents the same issue related to misleading labeling under section 403(a)(1) of the FD&C Act, where foods naturally free or low in a nutrient that bear a claim of “free” or “low” must be labeled as a food that is low in that nutrient (“broccoli, a fat free food”) to avoid implying the food has been altered as compared to foods of the same type. The comment said that requiring an added sugars declaration on a cranberry juice product that has fewer total sugars than juice containing all natural sugars is misleading because it implies the cranberry product with added sugars is less nutritious and generally unhealthy (citing United States v. Ninety-Five Barrels, 265 U.S. 438, 442-443 (1924) and United States v. An Article of Food . . . “Manischevitz . . . Diet Thins,” 377 F.Supp. 746 (E.D.N.Y. 1974)). The comment expressed concern that a shopper would focus on the added sugars declaration and not the total sugars declaration.

(Response) The listing of added sugars, which is a subset of the amount of total sugars, is not misleading. It is the factual statement of the amount of added sugars in a product and the declaration of added sugars is one of a number of nutrient declarations on the label which consumers can use to assist them in maintaining healthy dietary practices. We disagree that the declaration of added sugars is equivalent to the need to clarify that all broccoli is fat-free when making a fat-free claim about broccoli. First, the declaration of the amount of added sugars is not a claim, it is a required declaration. A package of broccoli would be required to declare 0 grams of fat on the Nutrition Facts label without any additional explanation (§ 101.9(c)(2)). Furthermore, the two cited cases cited by the comment are not relevant to the requirement to state the factual declaration of the amount of added sugars in a product. The Supreme Court in Ninety-Five Barrels was discussing a label of an imitation product that claimed to contain the actual ingredient. The Manischevitz Diet Thins case was addressing a product using the name “diet” that had the same calories and overall nutritional profile as the regular non-diet product. Both cases found these specific terms used were misleading and noted that the FD&C Act condemned statements that mislead about the make-up of the product. The declaration of added sugars provides more information to consumers about the nutritional make-up of the product to use to help them maintain healthy dietary practices. Consumers may have perceptions or preferences about a number of nutrients, and which nutrients they focus on in choosing food may vary. As we discuss in our response to comment 184, whether consumers regard a product as healthy can be a combination of many factors, and we intend to engage in education and outreach efforts to help consumers understand the role of the added sugars declaration and other aspects of the revised Nutrition Facts and Supplement Facts labels.

(Comment 55) One comment stated that the declaration of added sugars on cranberry juice, even if true, is “grossly misleading” under sections 403(a)(1) and 201(n) of the FD&C Act because of a failure to reveal the material fact that the human body processes added sugars and naturally occurring sugars in the same way. The comment said that consumers will falsely regard the cranberry juice as less healthy when compared to other fruit juices that have all naturally occurring sugars. The comment suggested an alternative method for labeling to ensure the added sugars declaration is no longer misleading. The alternative method would apply to “nutritious products made from unpalatable fruits” and would remove the indented Added Sugars declaration such that “The grams and percent of daily value for added sugars in a dried unpalatable fruit (a fruit in its raw state has total sugars of less than 5 percent and an average Brix-to-acid ration of six or less), and a juice product made with at least 27 percent juice of an unpalatable fruit, that is sweetened for fruit palatability and contains total sugars comparable to naturally sweetened dried fruits and 100 percent fruit juices, may be declared by an asterisk next to the declaration of total sugars with a footnote at the bottom of the nutrition facts panel that shall state: `**Total sugars include sugars added for fruit palatability.' ”

(Response) We disagree with the comment stating that the lack of difference in the way the body processes added versus naturally occurring sugars is a material fact with regard to the rationale for the added sugars declaration. The added sugars declaration is intended to assist consumers in maintaining healthy dietary practices based on the recommendation to decrease consumption of added sugars and the impact of a diet that includes high amounts of added sugars on chronic disease measures. We have addressed the consumer research on cranberry juice in our response to comment 184 and disagree that the added sugars declaration on cranberry juice misbrands the product. While we have modified the declaration of added sugars in the final rule, we have determined that no additional labeling is needed, as discussed in our response to comment 184.

(Comment 56) One comment stated that the term “nutrient” is not defined in the FD&C Act or FDA regulations and that it is reasonable for Congress to have intended the term to refer to substances that are chemically and structurally distinct from each other, with different physiological effects, and not based on whether the substance is added or inherent to a food. For these reasons, the comment suggested added sugars are not an additional nutrient within the context of section 403(q)(2)(A) of the FD&C Act. The comment referred to the listing of nutrients in section 403 of the FD&C Act (e.g., total fat, saturated fat, cholesterol, sodium) as scientifically or chemically distinct substances and that the nutrients listed in section Start Printed Page 33773403(q)(1)(D) and (E) of the FD&C Act are not distinguished based on whether they are added or inherent to a product. Furthermore, the comment said that the fact that verification of the added sugars declaration cannot be achieved through objective testing and requires records is another reason why Congress did not intend added sugars to be a nutrient (citing Util. Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014)). Another comment stated that we do not have the statutory authority to require the declaration of added sugars because they are not “additional nutrients” and are part of total sugars.

(Response) We disagree with the comments that added sugars is not compatible with the term “nutrient” in sections 403(q)(2) and 403(q)(1)(D) of the FD&C Act. With regard to the argument that it cannot be an additional nutrient if it is a component of total sugars or if it is not chemically distinct from total sugars, section 403(q)(1)(D) of the FD&C Act includes several nutrients that are subcomponents of other nutrients on the list, so the comments' arguments that each nutrient currently required is chemically distinct or that each nutrient is not a subcomponent of another listed nutrient is simply not correct. Total fat includes saturated fat, and total carbohydrates include sugars and dietary fiber. As these nutrients were all required by Congress to be declared on the label, we further disagree that Congress intended the nutrients to all be chemically and structurally distinct from each other and to have distinct physiological effects. Furthermore, the House committee report for the NLEA (H.R. 3562) (Report 101-538, June 13, 1990 at page 14) states that the Secretary may provide definitions of the nutrients required under 403(q)(1)(D) or 403(q)(2) of the FD&C Act, and we have done so consistent with the public health and based on sound scientific principles.

Additionally, the specific concerns and recommendations about added sugars' contribution to the daily diet that are distinct from total sugars has led to the requirement for the declaration of added sugars, consistent with the stated statutory purpose of assisting consumers to maintain healthy dietary practices. Nutrient content claims are defined in § 101.13(b) as claims that expressly or implicitly characterize the level of a nutrient of the type required to be in nutrition labeling under § 101.9 or under § 101.36. We have a “no added sugar,” “without added sugar,” or “no sugar added” nutrient content claim regulation (§ 101.60(c)(2)), supporting the fact that added sugars are considered to be a nutrient under the FD&C Act.

Also, we disagree that, because records would be needed to enforce the added sugars declaration, Congress did not intend that added sugars be considered a nutrient. Congress did not include any reference to “objective testing” or how enforcement would occur in the statutory language with regard to what nutrients should be declared on the label. The only criterion discussed in the statutory provision for adding a nutrient to the label is whether it will assist consumers in maintaining healthy dietary practices. Thus, the comment's reference to Util. Air Regulatory Group v. EPA, where the Supreme Court determined that an Agency had applied a more general definition to a statutory provision with a more narrow meaning given the context of the program, is also misplaced in this context. There is no context in the specific statutory provision about which nutrients should be declared on the label that indicates that it should be limited to nutrients that can be “objectively measured.”

(Comment 57) Some comments stated the added sugars declaration does not assist consumers in maintaining healthy dietary practices under section 403(q)(2)(A) of the FD&C Act because it misleads consumers into believing that products without added sugars, but with the same or greater calories and total sugars, are healthier if the product contains naturally occurring sugars. Some comments considered our past statements, including that added sugars are not chemically distinct from naturally occurring sugars and added sugars are not independently and directly linked to any disease, health-related condition such as obesity, or physiological endpoint, to support the proposition that the added sugars declaration would not assist consumers in maintaining healthy dietary practices by providing consumers information to construct diets that are nutrient dense and reduce calorie intake from added sugars.

(Response) We do not agree that the declaration of added sugars misleads consumers based on our consumer research results and those results submitted in the comments in response to questions about how “healthy” a product is that contains added sugars. The declaration of added sugars provides information about the amount of a single nutrient that consumers can use as part of their decisions in building a healthy dietary pattern. We are requiring the declaration of added sugars because a dietary pattern characterized, in part, by larger amounts of added sugars is associated with greater risk of CVD than a healthy dietary pattern that includes less added sugars. Therefore, inclusion of added sugars above and beyond what is naturally present in foods that are part of a healthy dietary pattern is a public health concern. The declaration is needed for consumers to be able to identify the amount of added sugars in a serving of a product in order to fit that product into their total daily diet.

Added sugars are not chemically different than sugars that are naturally present in foods, and one should not avoid all foods that are relatively higher in added sugars than others. Consumers can eat a healthy diet that includes added sugars, but, in order to carefully choose foods so that the overall diet is not high in added sugars relative to calorie needs, it is important to consider the amount of added sugars in a serving of a product and how the added sugars content of that product should be balanced with other food choices.

(Comment 58) One comment stated that an added sugars declaration is not related to the purpose of the NLEA because it does not help consumers reduce the risk of a diet-related disease (citing House Committee Report 101-538, 101st Congress, 2nd Sess., 13 through 14 and the Congressional Record (136 Cong. Rec. H5836 101st Cong. 2nd Sess. (July 30, 1990 at 19 and 21)), S. 16610 Cong. Rec. (Oct. 24, 1990)). The comment referenced statements from the preamble to the proposed rule related to our rationale for other mandatory nutrient declarations that relate to the intake of a nutrient that is specifically related to the risk of chronic disease, health-related condition, or a physiological endpoint. Another comment stated that the purpose of our added sugars declaration is to help consumers with dietary planning and is not reasonably related to the requirements and purpose of the statute.

(Response) First, we note again that the statutory language in section 403(q)(2) of the FD&C Act is that a nutrient can be required for the purposes of providing information regarding the nutritional value of such food that will assist consumers in maintaining healthy dietary practices. This statutory basis is how we determined to propose the mandatory declaration of added sugars. Furthermore, the statements cited by the comment relating to the Congressional history of the NLEA are taken out of context and inappropriately limit the scope of the NLEA and its nutrient declaration requirements. The purpose statement at the beginning of the House Start Printed Page 33774Committee Report that the comment referenced actually states, “The purpose of this legislation is to clarify and to strengthen the Food and Drug Administration's legal authority to require nutrition labeling on foods, and to establish the circumstances under which claims may be made about nutrients in foods” (House Committee Report 101-538, 101st Congress, 2nd Sess., 7). The comment's reference to the statements on the House floor by Congressman Madigan excluded the most relevant point about his more narrow bill with respect to specific chronic disease outcomes, that “Chairman Waxman has graciously included much of the language in my bill in this comprehensive nutrition labeling bill” (136 Cong. Rec. H5836 101st Cong. 2nd Sess. (July 30, 1990, at H5843). The statement from Senator Hatch seemingly focused on chronic disease also follows the more general statement by his co-sponsor Senator Metzenbaum that described the broader focus on healthy dietary practices, stating, “By providing the public with better nutrition information, this bill makes a major step forward in enabling consumers to select foods to protect and improve their health” (136 Cong. Rec. No. 147, S. 16607 101st Cong. 2nd Sess. (Oct 24, 1990, at S. 16608)).

While the preamble to the proposed rule discussed a different framework than an independent relationship between the nutrient and a risk of chronic disease, a health-related condition, or a physiological endpoint in the general population, added sugars are part of a dietary pattern linked to health effects and has been discussed in the recent DGA. In 2010, the scientific evidence supported a key DGA recommendation to reduce consumption of added sugars because of their effect on health due to the inability to eat excess added sugar and consume necessary nutrients within recommended calorie limits. In 2015, the DGAC Report included evidence that diets that included high amounts of added sugars were linked to increased risk of CVD compared to dietary patterns that included lower consumption of added sugars. The declaration of added sugars squarely fits within the statutory framework to assist consumers to maintain healthy dietary practices.

(Comment 59) One comment said we cannot rely on section 403(q)(2)(A) of the FD&C Act to support an added sugars declaration where we do not rely on an added sugars content of a food to determine if the food is “healthy” consistent with the nutrient content claim requirements for “healthy” in 21 CFR 101.65(d)(2). The comment seemed to assert that finalizing a requirement for an added sugars declaration, where the term “healthy” requires no limitation on added sugars content, is arbitrary and capricious under section 706(2) of the APA (5 U.S.C. 706(2)) and a violation of section 403(q)(1)(D) the FD&C Act (also citing Frisby v. HUD, 755 F.2d 1052, 1055 through 1056 (3d Cir. 1985) for the proposition that the Agency must follow its own regulations). Another comment stated that added sugars content is not included in the nutrient content claim for “healthy,” and, therefore, an added sugars declaration would not assist consumers in maintaining healthy dietary practices.

(Response) We are relying on our authority in section 403(q)(2)(A) of the FD&C Act to require the declaration of added sugars, and the only consideration for that statutory provision is whether the declaration will assist consumers to maintain healthy dietary practices. The Frisby case cited by the comment is not relevant because the definition of the voluntary “healthy” claim under section 403(r) of the FD&C Act does not bear on the determination of whether to require a declaration on the nutrition facts label, and we plan to revisit claims, including the healthy claim, after we finish this rulemaking. Furthermore, our finalizing a requirement for an added sugars declaration and any separate consideration of the healthy claim under section 403(r) of the FD&C Act do not violate the APA, as discussed in our response to comment 51.

(Comment 60) One comment stated the proposed added sugars declaration and DRV violate the NLEA because the 2015 DGAC Report and the science on which we rely are not sufficiently reliable or objective. Another comment suggested that the declaration of added sugars violates the FD&C Act and the APA because the DRV for added sugars is not based on a NAS report, which the comment stated “the House Committee Report urged” FDA to rely on for nutrients listed on the label, and therefore, presents impermissible and inconsistent Agency reasoning that is arbitrary and capricious (citing Allentown Mack. Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374 through 375 (1998)). The comment considered the use of the 2015 DGAC Report as the basis for the DRV to be a departure from past practice that is not sufficiently explained and without “sufficient scientific consensus.”

(Response) The comment conflates several arguments and statements and is incorrect in its reliance on the NLEA's legislative history to support its position. The reference to the National Academy of Science report in this context also is misplaced. As stated in the comment itself, the House Committee's reference in 1990 was to a specific National Academy of Science report that had been commissioned at the time. The report stated that the “Committee expects the Secretary to consider the hearing record before the Subcommittee and the NAS study on nutrition labeling, if that study is available in sufficient time to meet the statutory deadline” (H.R. Rep. No. 101-538, at 17). If the report was not completed, it did not need to be taken into consideration. Furthermore, this statement in the report did not constitute a limiting statement as to future decisions regarding other nutrients and what they should be based on. In addition, the comment only stated that the decision with regard to the DRV for added sugars is based on an impermissible source and did not dispute the entire decision to require the declaration of added sugars.

The reference to the NLRB case is similarly misplaced. The case refers to an Agency changing the standard it is applying to a determination of the evidence without describing any reasoned basis for the change. Here, we have provided a reasoned explanation for requiring the declaration and DRV for added sugars, and have done so throughout the rulemaking process. The science on the contributions of dietary patterns has evolved, and the 2015 DGAC Report contains evidence with regard to the effect of a diet that includes lower amounts of added sugars compared to a diet that includes higher amounts of added sugars. This evidence supplements the growing scientific evidence from the 2010 DGA and concern about added sugars and their impact on public health and the ability to maintain healthy dietary practices by consuming a diet sufficient in nutrients within calorie limits, which we included in our rationale for the proposed declaration for added sugars. The ability of a nutrient declaration to assist consumers in maintaining healthy dietary practices remains the determination upon which a new nutrient declaration is based.

(Comment 61) One comment said that we have not adequately explained our departure from what the comment characterized as the 2010 DGA's focus on added sugars labeling, stating further that we relied on the 2015 DGAC Report for a strong association between a dietary pattern characterized, in part, by a reduced intake of sugar-sweetened foods and beverages and reduced risk of Start Printed Page 33775CVD, which the comment stated is contrary to the law (citing Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983) and Nat'l Ass'n of Home Builders v. EPA, 682 F.3d 1032, 1037 (D.C. Cir. 2012)). The comment suggested that NLEA does not authorize us to rely on this basis for labeling, and, instead, we must rely on the presence or absence of a specific nutrient and disease relationship between added sugars and CVD before requiring such labeling, for which the comment states only moderate evidence is available. The comment cited studies to suggest there is no reliable correlation between added sugar content in food and healthy dietary choices or patterns.

(Response) First, this comment misrepresents the 2010 DGA, citing and quoting a line from Appendix 4 that lists the current nutrients that are displayed on the Nutrition Facts label and saying that this statement is the focus of the 2010 DGA recommendation with regard to added sugars, rather than the key recommendation and substantive chapter of the 2010 DGA. The comment also mistakenly states that the proposed rule and the supplemental proposed rule rely on the findings in the 2015 DGAC Report. As we stated in the preamble to the supplemental proposed rule (80 FR 44303 at 44307 through 44308), the science underlying the 2015 DGAC Report provides further support for the declaration of added sugars, which was supported in the proposed rule in part by the scientific evidence in the 2010 DGA related to reducing calories from added sugar. Thus, contrary to what the comment seemed to suggest, we are not departing from the science set forth in the 2010 DGA that is included in the evidence on which we rely for added sugars, but are also including additional evidence from the 2015 DGAC Report to further support the added sugars declaration, so the cases cited regarding the level of explanation that is necessary to explain a change in policy are not relevant.

The comment suggested that reliance on a rationale other than a specific disease relationship between added sugars and CVD is not permitted by the NLEA. The NLEA and FD&C Act state that nutrient declarations can be added if determined to assist consumers in maintaining healthy dietary practices. There is no further restriction on the evidence that can be used to support a declaration in the statute. Both the preamble to proposed rule and the preamble to the supplemental proposed rule thoroughly explain the rationale for the required declaration for added sugars.

Furthermore, a healthy dietary pattern, characterized in part by a reduced amount of sugar sweetened foods and beverages, is strongly associated with a reduced risk of CVD compared to less healthy dietary patterns. Thus, we disagree with the comment's statement that there is no reliable correlation between added sugar content in food and healthy dietary choices or patterns. The studies cited by the comment that looked at nutrient content claims and the data underlying a 2002 IOM suggested maximum intake level of 25 percent or less of added sugars are not relevant to the basis for our declaration of added sugars. One study cited by the comment described how small amounts of added sugars may increase the palatability of nutrient-dense foods. We acknowledged this finding in the preamble to the proposed rule (79 FR 11879 at 11905), and it is consistent with the requirement to declare added sugars and the percent DV so that consumers can understand how to incorporate such amounts of added sugars into their daily diets.

4. Recordkeeping Authority

The preamble to the proposed rule (79 FR 11879 at 11884 and 11956 through 11957) discussed our legal authority for the proposed recordkeeping requirements. We stated that we were relying on our authority under sections 403(q), 403(a), 201(n) and 701(a) of the FD&C Act, to propose record requirements to support nutrient declarations in labeling for added sugars, dietary fiber, soluble fiber, insoluble fiber, vitamin E, and folate/folic acid, under certain circumstances, so that we can determine compliance with labeling requirements and take enforcement action, as needed. We described how the records requirements would apply only to the narrow circumstances where there are not any appropriate reliable analytical methods that can be used to verify the compliance of a nutrient declaration.

We noted that failing to accurately state the amounts of nutrients on the label under § 101.9(g) would result in a product being misbranded. Under section 403(q) of the FD&C Act, a food must bear, in its label or labeling, the amount of the nutrient the food contains and, moreover, the nutrient declaration must be truthful and not misleading under sections 403(a)(1) and 201(n) of the FD&C Act. Thus, we stated that the proposed recordkeeping requirements are designed to ensure that the nutrient declarations are accurate, truthful and not misleading, based on information known only to the manufacturer, and to facilitate efficient and effective action to enforce the requirements when necessary. Furthermore, the records would allow us to verify the declared amount of each of these nutrients and that such amount is truthful and not misleading. Thus, the proposed records requirements would help in the efficient enforcement of the FD&C Act. We also noted that our authority to establish records requirements has been upheld under other provisions of the FD&C Act where we have found such records to be necessary, and cited National Confectioners Assoc. v. Califano, 569 F.2d 690, 693 through 694 (D.C. Cir. 1978)) (79 FR 11879 at 11884 and 11957). In addition to having the authority to require the maintenance of such records, we further stated that our authority also provided for FDA to have access to such records because in order to determine whether the food is misbranded and the manufacturer has committed a prohibited act, we must have access to the manufacturer's records that we are requiring be made and kept under sections 403(q), 403(a)(1), 201(n) and 701(a) of the FD&C Act. Without such authority to access the records supporting the declarations, these nutrient declarations that have been determined to be necessary to assist consumers to maintain healthy dietary practices would be unenforceable.

(Comment 62) While several comments supported our proposed requirement, many comments broadly asserted that we do not have the authority to require recordkeeping.

(Response) The FD&C Act requires foods to bear truthful and not misleading information about the amount of nutrients in the food to assist consumers in maintaining health dietary practices (sections 403(q), 403(a)(1), and 201(n) of the FD&C Act). As we stated in the preamble to the proposed rule (79 FR 11879 at 11956), under section 701(a) of the FD&C Act, we may issue regulations for the efficient enforcement of the FD&C Act in order to “effectuate a congressional objective expressed elsewhere in the Act” (Association of American Physicians and Surgeons, Inc. v. FDA, 226 F. Supp. 2d 204 (D.D.C. 2002) (citing Pharm. Mfrs. Ass'n. v. FDA, 484 F. Supp. 1179, 1183 (D. Del. 1980))). The recordkeeping requirements are intended to ensure that the nutrient declarations, which would be based on information known only to the manufacturer, are truthful and not misleading, and to facilitate efficient enforcement of the requirements for nutrient declaration when necessary. The recordkeeping requirements are only for foods for which official AOAC or other reliable and appropriate Start Printed Page 33776analytical methods are not available. FDA access to information, in the form of a record, required to support an added sugars, dietary fiber, soluble fiber, insoluble fiber, vitamin E, and/or folate/folic acid declaration, where the information is known only to the manufacturer, is a practical alternative means by which we can verify that the nutrient declarations comply with section 403(q) of the FD&C Act and thus, assist in the efficient enforcement of the FD&C Act. Moreover, such information would also be necessary for the manufacturer to maintain in order to ensure the accuracy of the label.

(Comment 63) Several comments stated that the FD&C Act does not give us express authority to require recordkeeping for nutrition labeling. Other comments specifically argued that sections 403(q), 403(a) and 201(n) of the FD&C Act do not provide for recordkeeping authority and that Congress had exercised care in defining the scope of our recordkeeping authority in the statute. Additionally, some comments said that Congress has not given FDA general records authority and Congress must grant specific authority to FDA to access manufacturing records but declined to do so for nutrition labeling. Several comments pointed out instances in the FD&C Act that provide express recordkeeping authority, arguing that the fact that Congress provided it in certain contexts means that it was not intended here.

(Response) Courts have not found that a specific grant of authority from Congress is necessary in order to promulgate every portion of every regulation (see, e.g., American Trucking Ass'ns, Inc. v. United States, 344 U.S. 298, 308-313 (1953) (“the promulgation of these rules . . . falls within the Commission's power, despite the absence of specific reference to leasing practices in the Act [citation omitted]. The grant of general rulemaking power necessary for enforcement compels this result.”) and Permian Basin Area Rate Cases, 390 U.S. 747, 780 (1968) (“We are, in the absence of compelling evidence that such was Congress' intention, unwilling to prohibit administrative action imperative for the achievement of an Agency's ultimate purposes.”)). This was also held to be true in Califano, where the court found that Congress had not intended to immunize the manufacturers from requirements, including recordkeeping, by not having an express recordkeeping provision in the statute (Califano, 569 F.2d at 693; see also Morrow v. Clayton, 326 F.2d 36, 44 (10th Cir. 1963) (Powers of an Agency are not limited to those expressly granted by statutes—where the end is required, appropriate means are given and every grant of power carries with it the use of necessary and lawful means for its effective execution) and Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 653 (1973) (Some Agency authority is “implicit in the regulatory scheme, not spelled out in haec verba” in the statute)).

Furthermore, we disagree that the express grant of records authority in other contexts means that it was expressly contemplated and rejected under the circumstances proposed here. The provision for efficient enforcement of the FD&C Act in section 701(a) of the FD&C Act, along with the authority to require or voluntary permit these nutrient declarations under section 403(q) of the FD&C Act to prevent misleading labeling, provides the ability to require such records to effectuate the goal of enforcing nutrition labeling for those limited products covered by the recordkeeping requirements.

(Comment 64) Several comments stated that courts have repeatedly explained that FDA cannot create records access using section 701(a) of the FD&C Act, citing Association of American Physicians & Surgeons v. FDA, 226 F. Supp. 2d 204 (D.D.C. 2002) and National Confectioners Association v. Califano, 569 F.2d 690, 695 (D.C. Cir. 1978).

(Response) The comments' reading of these cases is not correct. First, while the cited cases state that section 701(a) of the FD&C Act is not an unlimited or stand-alone provision, neither case found that maintenance of records was not a proper exercise of authority related to section 701(a) of the FD&C Act, when combined with authority provided in other substantive sections of the FD&C Act. In fact, maintenance of records was one requirement that the court in Califano upheld, stating, “In our opinion however the coding and record-keeping requirements here at issue clearly do not distend the scope of regulation authorized by the Act” (Califano, 569 F.2d at 695). One section in Assn. Amer. Physicians & Surgeons that the comment quoted is “Section 371 [701(a)] does not constitute an independent grant of authority that permits FDA to issue any regulation the Agency determines would advance the public health. Rather, 371 permits FDA to use rules as a means of administering authorities otherwise delegated to it by the Congress.” Unlike the separate requirement to do testing and include labeling that were discussed in Assn. Amer. Physicians & Surgeons, the limited records requirement discussed here is for the express purpose of administering the delegated authority in section 403(q) of the FD&C Act to require truthful and not misleading labeling and accurate nutrition labeling for the purpose of assisting consumers to maintain healthy dietary practices. In essence, it is a requirement simply to document how the manufacturer complied with the substantive requirements in certain circumstances.

The cited cases support the requirement of records to simply document how the manufacturer complies with the rule in this context. The court in Califano even cites case law that specifically addresses the relevance of remedying enforcement problems, which is the basis for the recordkeeping requirement here, stating that “. . . whether statutory scheme as a whole justified promulgation of the regulation . . . will depend not merely on an inquiry into statutory purpose, but concurrently on an understanding of what types of enforcement problems are encountered by FDA, the need for various sorts of supervision in order to effectuate the goals of the Act, and the safeguards devised to protect legitimate trade secrets” (Califano, 569 F.2d at 693 (citing Toilet Goods Association, Inc. v. Gardner, 387 U.S. 158, 163 (1967))). As we have discussed, in the case of the Nutrition Facts rule, the purpose of the statute is to ensure truthful and not misleading labeling as well as to assist consumers to maintain healthy dietary practices by providing nutrition information on the labels of food. The requirement to maintain these records would effectuate that purpose by allowing enforcement of the declarations of certain required nutrients.

(Comment 65) One comment argued that section 701(a) of the FD&C Act cannot be reasonably construed to authorize records access because it does not constitute a separate grant of authority and cannot be read to authorize recordkeeping authority if that authority is not already included in the other sections being used for authority, such as sections 403(q), 403(a), and 201(n) of the FD&C Act, in this case.

(Response) We agree that section 701(a) of the FD&C Act does not constitute a completely separate grant of authority to promulgate any regulation to protect the public health, but we disagree that it cannot be used to authorize records access for the nutrient declarations identified when there is no express authority in section 403(q) of the FD&C Act to require and access these specific records, as the comment argues. If there had to be an express provision in every relevant substantive provisions of the statute, such as section Start Printed Page 33777403(q) of the FD&C Act, reference to section 701(a) of the FD&C Act and its use to effectuate the efficient enforcement of the FD&C Act would never be necessary, and it would be rendered superfluous.

Furthermore, as discussed in greater detail in our response to comment 64, this notion was explicitly rejected in Califano, where the court stated that it was rejecting the idea that the regulation must stand or fall on the substantive section alone and found that Congress had not intended to immunize the manufacturers from requirements, including recordkeeping, by not having an express provision in the statute (Califano, 569 F.2d at 693; see also Morrow v. Clayton, 326 F.2d 36, 44 (10th Cir. 1963) and Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 653 (1973)). In the current context, records access is necessary to efficiently enforce the statutory requirements in certain limited circumstances.

(Comment 66) One comment argued that the case law we cited did not support our records access authority because the cases were not specific to nutrition labeling and were related to drug labeling. The comment said that the cases have no bearing on the issues here. Another comment argued that we should not have relied on National Confectioners Association v. Califano because it was decided before the NLEA was enacted.

(Response) We first note that many cases cited by these and other comments are not specific to nutrition labeling and were decided well before the NLEA was enacted. We disagree with these comments and find the cases, which many comments also cited, to be both applicable and the best indication of the proper reading of the FD&C Act. While it is rare to find case law that directly mirrors the situation at issue, Califano is striking in that it specifically affirms our authority to promulgate a recordkeeping requirement for certain food products when needed to be able to effectuate the statutory purpose. Congress has not acted to overturn that decision, which was the applicable existing legal framework when Congress was enacting the NLEA.

(Comment 67) Several comments referenced section 301(e) of the FD&C Act, regarding what recordkeeping violations constitute a prohibited act, as an exclusive list of what recordkeeping provisions are authorized and as evidence that sections 403(q), 403(a), 201(n), and 701(a) of the FD&C Act do not authorize recordkeeping provisions.

(Response) We disagree that the absence of the specified provisions in the list of prohibited acts regarding records bears on whether we have the authority to require records under the statute. Section 301(e) of the FD&C Act, regarding prohibited acts, refers to the express recordkeeping requirements in the FD&C Act. Moreover, a prohibited act violation in section 301(e) of the FD&C Act is separate and distinct from a misbranding violation in section 403(q) of the FD&C Act. It is a prohibited act under section 301(a) of the FD&C Act to introduce, or deliver for introduction, a misbranded food into interstate commerce. Thus, the fact that there is not a prohibited act violation for access to, and copying of, records related to the nutrient declarations for these select nutrients under section 403(q) of the FD&C Act does not mean that we do not have authority under sections 403(q) and 701(a) of the FD&C Act to require these records under these circumstances. As we explained earlier, express authority in section 403(q) of the FD&C Act is not needed for these records (see Califano, 569 F.2d at 693). Maintenance of and access to records for certain nutrition labeling declarations only under certain circumstances is necessary for the efficient enforcement of the Nutrition Facts labeling requirements, whether or not compliance with the those requirements are included as prohibited act under the statute.

(Comment 68) Several comments referenced a statement in the preamble to the 1993 nutrition labeling final rule stating that, to support a misbranding charge for inaccurate nutrient content information, we must have accurate, reliable, and objective data to present in a court of law and that, to obtain that information, we rely upon the work performed by our trained employees because we do not have legal authority in most instances to inspect a food manufacturing firm's records (58 FR 2079 at 2110, January 6, 1993). The comments asserted that this statement was evidence that we recognized that we do not have the authority to access manufacturing records as part of our enforcement of the nutrition labeling requirements.

(Response) We do not agree with this characterization of the statement in the 1993 final rule. The cited statement was part of a discussion of why we perform our own laboratory analyses and use those results for enforcement, rather than looking at or verifying laboratory analysis results kept in the records of a manufacturer. When there are available reliable laboratory analyses in order to test for a specific nutrient, we still rely on those analyses for compliance purposes. As we have described, the records requirements in this final rule apply only to the narrow circumstances where there are not any appropriate reliable analytical methods that can be used to verify the compliance of a nutrient declaration.

Where there are appropriate reliable analytical methods, we would not need to access manufacturing records in order to enforce the FD&C Act. However, the narrow circumstances where we do have the authority and are exercising the authority here are those circumstances where we do not have access to appropriate reliable analytical methods.

(Comment 69) While one comment pointed out that § 101.9(g)(9) already contemplates and provides a mechanism for the use of an alternative means of compliance for nutrition labeling, supporting our use of an alternative means to enforce compliance here, a few comments took exception to the preamble to the proposed rule's reference to situations where our regulations already provided for maintenance of records in the nutrition context. The comments stated that those instances regarding aeration to reduce fat and caloric content of foods (58 FR 2229 at 2271, January 6, 1993) and caloric content of new products with reduced digestibility (58 FR 2079 at 2111) were optional recordkeeping in instances where a manufacturer chooses to depart from the established regulations or to support a voluntary claim, rather than the broad regulations we proposed here for all manufacturers.

(Response) These examples were provided as illustrations of the use of records in a compliance context, not to demonstrate our authority. Any discussion of these other regulatory examples does not affect our authority with regard to this particular records requirement. We do not agree that these are broad regulations; rather, they are for a quite limited purpose and scope—only required when the manufacturer is including a mixture of products that cannot be distinguished by the analytical methods detailed in the regulations. The requirements also are quite flexible, not requiring any particular records and allowing the manufacturer to determine the best records to establish and maintain in order to comply. Furthermore, we disagree with the comment that the cited existing regulations with reliance on records for compliance purposes are all optional or voluntary. In the context of calculating appropriate caloric content of new products with reduced digestibility, the caloric declaration is a required declaration, and products wishing to adjust the declared amount because they are using certain novel Start Printed Page 33778ingredients would need to submit documentation of their calculations to FDA.

(Comment 70) Several comments stated that, because they believed we did not have a scientific basis for requiring the declaration of added sugars, our authority to require records to verify the added sugars declaration was questionable.

(Response) Please see part II.H.3 for a more detailed discussion of our scientific basis for requiring the declaration of added sugars. Because the added sugar declaration is necessary to assist consumers in maintaining healthy dietary practices, which is the statutory mandate, the recordkeeping requirements are necessary and authorized for the efficient enforcement of the FD&C Act.

(Comment 71) Multiple comments argued that our authority excludes access to “recipes for food,” among other proprietary information. Some comments stated that we may not access or that we lack authority to access recipes for food, or that recipes were protected by Congress. Another comment stated that it is “beyond the scope of the Agency to inspect records related to product formulation.” Other comments noted that the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (Pub. L. 107-188) (BT Act), as well as section 414 of the FD&C Act, expressly carve out recipes as a record that we cannot access even in food safety emergency situations.

(Response) The exclusion of recipes that several comments referred to is found in the BT Act, and there is no more general protection of recipes by Congress. We further disagree that the parameters of the recordkeeping authority in the BT Act affect our ability to require records here. The purpose of the review of records under the BT Act is distinct from the purpose of the record review for nutrition labeling, and section 306 of the BT Act says that it shall not be construed to limit the ability of the Secretary to require records under other provisions of the FD&C Act.

Furthermore, the final rule's recordkeeping requirement is flexible and does not require any specific document to support the declarations. While the preamble to the proposed rule provided some examples of records that manufacturers may choose to maintain (see, e.g., 79 FR 11879 at 11956), they are not required to maintain any particular record and would also be permitted to maintain redacted documents if they established the necessary information. See part II.R.3 for a description of the variety of records that manufacturers can establish or maintain to meet the requirements.

We discuss other comments regarding the proper handling and confidentiality of any proprietary information that is submitted in part II.R.3.

(Comment 72) Some comments said that the recordkeeping authority previously given to FDA, as in the case of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (Pub. L. 107-188), were unrelated to nutrition labeling.

(Response) We agree that the BT Act authority is unrelated, and we disagree that the scope of recordkeeping authority in the BT Act limits our ability to require records. Section 306 of the BT Act states that it shall not be construed to limit the ability of the Secretary to require records under other provisions of the FD&C Act.

(Comment 73) Some comments stated that we did not need records access to enforce the nutrition declarations because companies are already required to ensure that their labels are not false or misleading under section 403(a)(1) of the FD&C Act and § 101.9(g).

(Response) While we agree with the comment that manufacturers are already required to ensure that their labels are not false or misleading, we are requiring that records be maintained that can specifically support certain declarations required under § 101.9(g) because without access to those records, we are not able to verify the accuracy of the required declared amounts.

(Comment 74) Some comments argued that, even if we had the authority to access records, we did not have the authority to copy records, stating that copying of records is not required for the efficient enforcement of the FD&C Act and that inspectors should be able to inspect and evaluate records onsite at the manufacturing facility without copying them.

(Response) We disagree with this comment. As we stated in the preamble to the proposed rule (79 FR 11879 at 11957), in order to determine whether the food is misbranded and the manufacturer has committed a prohibited act, we must have access to the manufacturer's records that we are requiring be made and kept under sections 403(q), 403(a)(1), 201(n) and 701(a) of the FD&C Act. Without the authority to access the records supporting the declarations, the nutrient declarations that we have determined to be necessary to assist consumers in maintaining healthy dietary practices would be unenforceable. While we understand the concerns with confidentiality of certain corporate information, and we discuss safeguards for such information in part II.R.3, practically, we need to be able to copy the records and access them at FDA headquarters in order to fully evaluate them to determine compliance or the need for any further regulatory action or enforcement proceedings (see FDA Regulatory Procedure Manual, section 4-1-4, regarding Center concurrence for labeling violations). Such full evaluation by us is not possible onsite at the facility.

(Comment 75) One comment suggested that the inspectional authority in section 704 of the FD&C Act did not provide for access to these records.

(Response) Section 704 of the FD&C Act states that the inspection “shall” extend to records when section 414 of the FD&C Act applies. We do not interpret this as an exclusive extension. Section 414 of the FD&C Act specifically states that it does not limit the authority of the secretary to inspect records under other provisions of the FD&C Act. This specific grant of authority applies to a single specific statutory provision regarding food safety, and does not address false and misleading labeling. It does not prevent us from accessing records that we can require by other regulations.

5. Miscellaneous Comments

Several comments raised other legal issues with respect to various parts of the rule.

Dietary Fiber

(Comment 76) One comment stated the definition of dietary fiber, which requires a dietary fiber to have a physiological effect beneficial to health, would “prohibit the use of accurate, well substantiated dietary fiber determinations in nutrition labeling for many foods.” The comment said that the restriction is not adequately justified to advance FDA's labeling objectives, nor is adequately tailored, to satisfy the First Amendment.

(Response) We disagree that, by defining “dietary fiber,” we are prohibiting the use of “accurate, well substantiated dietary fiber determinations” as the comment suggests. As we explain in our response to comment 252, the definition includes dietary fibers that have been shown to have a physiological effect beneficial to human health, and therefore, the declared amount of dietary fiber will include information about the amount of fibers in a serving of food that are necessary to maintain healthy dietary practices, consistent with our authority in section 403(q)(2) of the FD&C Act. Manufacturers will be able to petition Start Printed Page 33779FDA to request that we amend the definition to include additional fibers, as appropriate. If a substance is a fiber, but not a “dietary fiber” that has a physiological effect beneficial to human health (such that the fiber is not eligible to be, and not listed as, a “dietary fiber” in the codified definition of “dietary fiber”), a manufacturer may still declare the substance as part of total carbohydrate. Furthermore, a manufacturer may make a statement about the amount of these other fiber substances in the food, provided the statement is truthful and not misleading. The comment did not provide further explanation for why our definition for dietary fiber is not adequately justified or adequately tailored under the First Amendment and, based on the reasons we provide, we are not making any changes in response to this comment.

D. Factors for Mandatory or Voluntary Declaration of Non-Statutory Nutrients

The preamble to the proposed rule (79 FR 11879 at 11890 through 11891) discussed the factors that we primarily considered in requiring the declaration of most non-statutory nutrients or providing for the voluntary declaration of such nutrients. Our discussion of these factors in the proposed rule related to the nutrients for which there is an independent relationship between the nutrient and risk of a chronic disease, health-related condition, or physiological endpoint. We did not consider these factors for added sugars because our rationale for the declaration of added sugars differs and is not based on an independent relationship between added sugars and risk of chronic disease, health-related condition, or physiological endpoint. Thus, to help clarify when we refer to a nutrient for which there is such an independent relationship, we refer to the nutrient as “this type of” or “this category of” or, if plural, “these types of” nutrient(s), or similar phrase. We discuss our rationale for requiring added sugars separately because our rationale for added sugars is distinct from the factors that applied more generally to these other types of nutrients. In general, we continue to consider mandatory declaration appropriate for these types of nutrients when there is public health significance and a quantitative intake recommendation that can be used for setting a DV (DRV or RDI). However, we also have considered mandatory declaration based, in part, on evidence highlighting the role of a nutrient (e.g., trans fat) in chronic disease risk. The preamble to the proposed rule (79 FR 11879 at 11889) explained that, under section 403(q)(1)(C) and (D) of the FD&C Act, nutrition information in food labeling must include the total number of calories, derived from any source and derived from the total fat, and the amounts of total fat, saturated fat, cholesterol, sodium, total carbohydrates, complex carbohydrates, sugars, dietary fiber, and total protein. We referred to the nutrients that are explicitly required by the FD&C Act to be declared on the Nutrition Facts label as “statutorily required nutrients.” Section 403(q)(2)(B) of the FD&C Act permits us to remove a statutorily required nutrient from the label or labeling of food, by regulation, if we determine the information related to that nutrient is not necessary to assist consumers in maintaining healthy dietary practices.

Section 403(q)(2)(A) of the FD&C Act also gives us the authority to require, by regulation, other nutrients to be declared if the we determine that a nutrient will provide information regarding the nutritional value of such food that will assist consumers in maintaining healthy dietary practices. The preamble to the proposed rule explained that we consider such nutrients that are not statutorily required, but subject to our discretion under section 403(q)(2)(A) of the FD&C Act, to be “non-statutory nutrients” to distinguish them from the “statutorily required nutrients” (79 FR 11879 at 11889). Thus, insofar as “non-statutory nutrients” are concerned, previously we have: (1) Required the declaration of certain essential vitamins and minerals (such as vitamins A and C, iron, and calcium) for which an RDI was established and that were determined to have public health significance; and (2) permitted the declaration of the remaining essential vitamins and minerals for which there was an established RDI or DRV (i.e., vitamin E) or that had public health significance, and permitted the declaration of certain subcategories of macronutrients for which a DRV was not established (including monounsaturated fat, polyunsaturated fat, soluble fiber, insoluble fiber, sugar alcohol, and other carbohydrate) (id.).

The preamble to the proposed rule (id. at 11890) explained that, to help us determine whether a non-statutory nutrient, for which there is an independent relationship between the nutrient and risk of chronic disease, health-related condition, or physiological endpoint, should be a required or permitted declaration, we consider: (1) The existence of quantitative intake recommendations; and (2) public health significance. Quantitative intake recommendations are reference intake levels provided in consensus reports that can be used to set a DRV or RDI. We expect these consensus reports to be published for the purpose of setting quantitative intake recommendations (e.g., the IOM DRI reports), but, if DRIs are not available for nutrients, other than essential vitamins and minerals, then we consider the scientific evidence from other U.S. consensus reports or the DGA. Public health significance refers to two elements. First, we consider whether there is evidence of a relationship between the nutrient and a chronic disease, health-related condition, or health-related physiological endpoint. This can be demonstrated either by well-established evidence (in the form of U.S. consensus reports) or, for essential vitamins and minerals, the health consequences of inadequacy of the nutrient. Second, we consider whether there is evidence of a problem related to health in the general U.S. population. This is demonstrated by both evidence of a problem with the intake of the nutrient in the general U.S. population and evidence of the prevalence of the chronic disease, health-related condition, or health-related physiological endpoint that is linked to that nutrient in the general U.S. population.

For mandatory declaration of this type of non-statutory nutrient, in general, we consider mandatory declaration appropriate when there is public health significance and scientific evidence to support a quantitative intake (which, for purposes of convenience, we will refer to as “a quantitative intake recommendation”) that can be used for setting a DV (DRV or RDI). However, we have also considered mandatory declaration based, in part, on evidence highlighting the role of a nutrient (e.g., trans fat) in chronic disease risk.

For voluntary declaration of a non-essential vitamin or mineral (e.g., fluoride, soluble and insoluble fiber, monounsaturated fatty acids and polyunsaturated fatty acids), we consider voluntary declaration to be appropriate when the nutrient either has a quantitative intake recommendation, but does not have public health significance, or does not have a quantitative intake recommendation available for setting a DRV but has public health significance. In addition, we permit voluntary declaration for essential vitamins or minerals that we determine do not fit within our considerations for mandatory declaration, but that have an RDI.

The preamble to the proposed rule also noted that we continue to be mindful of factors such as the number Start Printed Page 33780of nutrients that can be listed in nutrition labeling, the possibility that some individuals could interpret a long list of nutrients as implying that a food has greater nutritional significance than is the case, and that there is limited space for nutrition information on the label (id.).

(Comment 77) The preamble to the proposed rule (id. at 11891) invited public comment on our factors for mandatory and voluntary declarations of these types of nutrients. Some comments supported the factors. One comment, however, also suggested that, if the 2015-2020 DGA is released before we publish a final rule, the vitamins and minerals considered to be of public health significance should be based on the most recent version of the DGA.

(Response) As discussed in the preamble to the proposed rule (79 FR 11879 at 11890 and 11918), the factors that we consider for determining the essential vitamins and minerals with the greatest public health significance to be those for which the IOM based DRIs on a chronic disease risk, or health related condition, or a nutrient deficiency with clinical significance. Additionally, we consider whether nutrient intake data, and/or, when available, biomarkers of nutrient status, provide evidence of inadequate intakes in the general healthy U.S. population (ages 4 years and older) and whether a substantial prevalence of a disease, or health related condition or a nutrient deficiency with clinical significance exists that was linked to the particular nutrient. Our intake and status biomarker analysis is conducted for the U.S. general population, ages 4 years and older, which is the focus of the label, while the DGA focuses on the U.S. population ages 2 years and older. The 2015 DGAC (Ref. 19) used a three-pronged approach similar to our factors for determining the nutrients of public health concern, including analysis of intake data, available valid biochemical indices from NHANES dietary survey, and data on the prevalence of health condition in the U.S. population. Based on the scientific evidence in the 2015 DGAC approach, vitamin D, calcium, potassium, iron, and fiber were considered as nutrients of public health concern for under consumption.

(Comment 78) Another comment agreed with the factors, but suggested that we use the 2010 DGA or the 2015-2020 DGA (if it became available) when a quantitative intake recommendation by the IOM is not available and can be supported by a “Nutrition Evidence Library Review system.”

(Response) We agree that it is often appropriate to consider the scientific information in the DGA when the IOM does not provide a quantitative intake recommendation. The preamble to the proposed rule stated that we will consider quantitative intake recommendations from the IOM report, but if DRIs are not available for nutrients (other than essential vitamins and minerals), we will consider science-based recommendations from other U.S. consensus reports or the DGA policy reports (id. at 11890).

E. Calories

Under section 403(q)(1)(C)(i) of the FD&C Act, nutrition information in food labels or labeling must include the total number of calories derived from any source. Our preexisting regulations require the total caloric content of a food to be declared on the Nutrition Facts label (§ 101.9(c)(1)), and the proposed rule would not modify the requirement to declare total calories. However, in the preamble to the proposed rule (79 FR 11879 at 11891), we stated that we were reconsidering a number of other requirements related to the declaration of information about calories. The other requirements related to “Calories from fat,” “Calories from saturated fat,” the 2,000 reference calorie intake level, a percent DV for calories, and requirements related to prominence of the calorie declaration and the footnote statement and table of DVs for 2,000 and 2,500 calorie diets.

1. Calories From Fat

Our preexisting regulations, at § 101.9(c)(1)(ii), require the declaration of “Calories from fat” on the label. This requirement stems from section 403(q)(1)(C)(ii) of the FD&C Act which, in turn, requires total calories from fat to be declared on the label or labeling of food. However, section 403(q)(2)(B) of the FD&C Act gives us the discretion to remove the requirement by regulation if we determine that the requirement is not necessary to assist consumers in maintaining healthy dietary practices. The preamble to the proposed rule (79 FR 11879 at 11891) explained that we reviewed current scientific evidence and consensus reports in determining whether information on calories from fat is necessary to assist consumers in maintaining healthy dietary practices. Current dietary recommendations no longer emphasize total fat. Certain fatty acids are understood to be beneficial, while others are understood to have negative health effects, particularly related to cardiovascular disease. Consequently, the proposed rule would no longer require, nor would it allow voluntarily, the declaration of “Calories from fat” on the Nutrition Facts label. In the preamble to the proposed rule (79 FR 11879 at 11891), we acknowledged that eliminating the declaration of “Calories from fat” may appear to be a loss of information on the amount of fat being consumed, but noted that the amount of fat being consumed can still be obtained from the total fat declaration elsewhere on the Nutrition Facts label, and consumers can still use the percent DV for total fat to put fat content in the context of a total daily diet, compare products, and plan diets. Thus, the proposed rule would remove § 101.9(c)(1)(ii), which requires declaration of calories from fat, and redesignate § 101.9(c)(1)(iii) as § 101.9(c)(1)(ii).

(Comment 79) Several comments supported removing the declaration of “Calories from fat” because current dietary recommendations emphasize that the intake of total calories and the type of fat consumed are more important than information on calories from fat in maintaining healthy dietary practices.

Many comments opposed removing the declaration of “Calories from fat” because of the importance of knowing this information for consumers who are diabetic, overweight, have high blood pressure, or are at risk of heart disease. Several comments also noted that, in general, the information was useful to monitor the amount of calories from fat consumed in packaged foods. These comments noted that some people use the “Calories from fat” information to make a choice between similar products and that, because of fat's caloric density, consumers need to be informed regarding the amount of calories they were getting from fat. Other comments also suggested that we require the declaration of “Percent of calories from fat,” and some comments supported removing the “Calories from fat” declaration if a declaration of monounsaturated and polyunsaturated fats was mandatory.

A few comments opposed to removing the “Calories from fat” declaration stated that this information remains useful to consumers; the comments, however, did agree that the total number of calories and types of fatty acids consumed are more important than total fat consumption in maintaining healthy dietary practices and reducing cardiovascular risk. One comment stated that it is important for total fat consumption to be within the acceptable range (i.e., 20 to 35 percent of daily caloric intake) established by the IOM, and that “Calories from fat” provides valuable information to help consumers put the Dietary Guidelines into action. Another comment disagreed Start Printed Page 33781with our assessment that removing “Calories from fat” does not constitute a loss of information to consumers because there is presently no other means for conveying differences in nutrient density between macronutrients on the Nutrition Facts label. One comment indicated that, as long as the “Calories from fat” declaration is truthful and not misleading, the information is protected commercial speech under the First Amendment and that there is no legal basis to prohibit it. The comment said that “Calories from fat” should continue to be allowed on the Nutrition Facts label on a voluntary basis.

(Response) We disagree that the labeling of “Calories from fat” is required for specific health conditions or that it is necessary for consumers to monitor their calories from total fat. The Nutrition Facts label is intended to provide nutrition information to the general U.S. population and not for specific populations with specific diseases. Current dietary recommendations no longer emphasize total fat. Consumers already have information on the quantitative amount of total fat on the label as well as information of its DV on the label. The extra emphasis of calories from fat is not needed based on the new science for total fat. As we stated in the preamble to the proposed rule (79 FR 11879 at 11891), U.S. consensus reports recognized that there are benefits to consuming moderate amounts of fat and that different types of fat have different roles in chronic disease risk, so the additional emphasis of “Calories from fat” is not warranted. The results of these reports and dietary recommendations also establish why a declaration of “Percent of Calories from Fat” is not necessary to assist consumers in maintaining healthy dietary practices, because the reports emphasize the intake of “total calories” and the type of fat consumed. We also note that the information required for fats in the Nutrition Facts label, in the absence of a declaration of “Calories from Fat,” provides consumers with the information to compare similar products and make healthy dietary choices.

Information on monounsaturated and polyunsaturated fats is voluntary on the Nutrition Facts label due to their role in health, and information on saturated fat will still be required. Ultimately, we do not think mandatory information on the amounts of monounsaturated and polyunsaturated fats is necessary to help consumers maintain healthy dietary practices because information on the quantitative amount and the percent DV of total fat and saturated fat will still be required on the Nutrition Facts label. We discuss monounsaturated and polyunsaturated fats in greater detail in part II.F.4.

We disagree that the declaration of “Calories from fat” should be voluntary on the Nutrition Facts label. Based on current scientific evidence and dietary recommendations, we have concluded that the declaration of “Calories from fat” is not necessary to assist consumers in maintain health dietary practices. Information on total calories, the quantitative and percent DVs for total fat and saturated fat, and quantitative amount of trans fat provides consumers with information to maintain healthy dietary practices and to put total fat and saturated fat in the context of a total daily diet, to compare products, and to plan diets.

(Comment 80) Some comments supporting the continued declaration of “Calories from fat” suggested requiring a declaration only for certain foods that contained above a specified level of total fat or if the food contained more than a certain amount of saturated and trans fat.

(Response) We decline to revise the rule as suggested by the comments. To require a declaration for “Calories from fat” only on certain products would not be consistent with our conclusion that information on “Calories from fat” is not necessary to help consumers in maintaining healthy dietary practices. Furthermore, the quantitative amounts and percent DV for total fat and saturated fat are already provided, as well as the quantitative amount of trans fat. Finally, the DGAs and other consensus reports emphasize the importance of total calories rather than the amount of calories from any particular macronutrient.

2. Calories From Saturated Fat

Under our preexisting regulations at § 101.9(c)(1)(iii), the declaration of “Calories from saturated fat” is voluntary. The preamble to the proposed rule noted that saturated fat is known to increase the risk of cardiovascular disease and, unlike “Calories from fat,” which could include calories attributable to fatty acids that decrease or increase the risk of certain diseases, “Calories from saturated fat” would provide information about calories from a source known to increase disease risk (79 FR 11879 at 11892). Although we tentatively concluded that mandatory declaration of “Calories from saturated fat” is not necessary because the amount of saturated fat being consumed can be obtained from the total saturated fat declaration elsewhere on the Nutrition Facts label and because consumers can still use the percent DV for saturated fat to put saturated fat content in the context of a total daily diet, compare products, and plan diets, we decided that, due to the strong evidence associating higher intakes of saturated fat with higher low-density lipoprotein (LDL) cholesterol levels, information on “Calories from saturated fat” can assist consumers in maintaining healthy dietary practices. Therefore, the proposed rule would not change the current voluntary labeling of “Calories from saturated fat” in the Nutrition Facts label as specified in § 101.9(c)(1)(iii). However, considering our proposal to eliminate the declaration of “Calories from fat” on the Nutrition Facts label (see part II.E.1.), the proposed rule would revise § 101.9(c)(1)(iii) and (d)(5) to specify that the statement “Calories from saturated fat,” when declared, must be indented under the statement of calories. In addition, the proposed rule would redesignate § 101.9(c)(1)(iii) as proposed § 101.9(c)(1)(ii).

We did not receive comments on this topic and have finalized the revisions without change.

3. Two Thousand Calories as the Reference Caloric Intake Level

Our preexisting regulations, at § 101.9(c)(9), establish a reference calorie intake level of 2,000 calories to set DRVs for total fat, saturated fat, total carbohydrate, protein, and dietary fiber. In addition, the preexisting regulation requires a footnote on the Nutrition Facts label that states, “Percent Daily Values are based on a 2,000 calorie diet. Your daily values may be higher or lower depending on your calorie needs,” followed by a table with certain DVs based on 2,000 and 2,500 calorie diets.

The preamble to the proposed rule (79 FR 11879 at 11892) discussed recommendations from the IOM macronutrient report that provided estimated energy requirements (EERs) and the IOM labeling report (Refs. 24-25), as well as comments (Ref. 26) received in response to the 2007 ANPRM, in which we asked whether 2,000 calories should continue to be used as the reference calorie intake level and asked questions related to the use of the EERs. The preamble to the proposed rule explained that an EER is a DRI set by the IOM for energy intake and is defined as the dietary energy intake that is predicted to maintain energy balance in a healthy adult of defined age, gender, weight, height, and level of physical activity consistent with good health. The IOM set EERs for all Start Printed Page 33782life-stage and gender groups and based these EERs on normal weight individuals (i.e., Body Mass Index (BMI) < 25) (Ref. 24). The IOM Labeling Committee considered whether there was a basis to use the EERs for developing a new reference calorie intake level for macronutrients in nutrition labeling. The IOM Labeling Committee found that the data necessary to use the EER concept as the basis for a reference calorie intake level for nutrition labeling were incomplete and that retaining the current 2,000 reference calorie intake level would be the best approach as it would provide continuity and would not encourage higher calorie intake and overconsumption of energy (Ref. 25). The proposed rule would not suggest any changes to the current use of 2,000 reference calorie intake level as the basis for setting DRVs for total fat, saturated fat, total carbohydrate, dietary fiber, and protein.

(Comment 81) Many comments supported using 2,000 calories as the reference caloric intake levels based on the same rationale provided by U.S. consensus reports and the IOM labeling report mentioned in the preamble to the proposed rule and agreed that the EER was not an appropriate way to set a reference caloric intake level.

In contrast, many other comments opposed using 2,000 calories as a reference caloric intake level. The comments said that many individuals do not consume 2,000 calories (i.e., individuals may need more or less depending on age, sex, weight, height and physical activity level). Other comments wanted us to use a different reference calorie intake level (i.e., 1,400 calories, 1,800 calories or more than 2,000 calories) or to eliminate the concept of a reference calorie intake level because, according to the comments, it is not useful or accurate because all individuals do not consume 2,000 calories per day.

(Response) We agree that an individual's caloric needs can vary; however, we disagree that the reference caloric intake level should be a value other than 2,000 calories or that there should not be one at all. As we stated in the preamble to the proposed rule, the reference calorie intake level is not used as a target for caloric intake, but rather to set DVs for total fat, saturated fat, total carbohydrate, protein, and dietary fiber (see 79 FR 11879 at 11892). We agree with the IOM labeling report (Ref. 25) that a reference caloric intake level of 2,000 calories provides continuity and would not encourage higher calorie intake and overconsumption of energy (id.).

We also use 2,000 calories because a rounded value is easier for other consumers to use and is less likely suggest an inappropriate level of precision as would 1,500 calories, 1,800 calories, or 2,350 calories. The comments supporting a different reference caloric intake level did not provide evidence to support these values for our consideration; consequently, we do not have sufficient information to determine the advantages or disadvantages associated with a different value or how the values compare against the 2,000 calorie value used now.

4. Percent DV Declaration for Calories

Our preexisting regulations do not provide for a DRV for calories. The preamble to the proposed rule (79 FR 11879 at 11892 through 11893) explained that setting a DRV for calories would necessitate determining a quantitative intake recommendation for calories, but also noted that there is no appropriate quantitative intake recommendation and that we were not aware of any other data or information on which a DRV for calories could be determined. Thus, the proposed rule would not set a DRV for calories and, as a result, neither require nor permit a percent DV declaration for calories.

(Comment 82) Many comments agreed with our rationale for not providing a percent DV for calories. Some comments said that a percent DV for calories would be misleading, not accurate, or not useful because not all individuals consume 2,000 calories a day.

In contrast, other comments supported a declaration for percent DV because, according to the comments, this information would be useful to consumers by allowing them to learn about the relationship between portion size and calorie intake. Another comment noted that an optional declaration of a percent DV for calories would allow consumers to make more informed decisions regarding selection of processed foods. Some comments suggested having different percent DVs for calories (i.e., one for men and woman, or one for growing children and adults, or two DVs of 1,500 and 2,000 calories).

(Response) We do not agree that a DV for calories, for purposes of nutrition labeling, should be set at any caloric level. We continue to believe that, to provide a DV, a DRV based on quantitative intake recommendations for calories would need to be set. Quantitative intake recommendations for calories are called estimated energy requirements (EERs), and they are based on normal weight healthy individuals of defined age, gender, weight, height, and level of physical activity. It would be difficult to combine the EERs into a single reference calorie level applicable to the general population because calorie needs vary based on many factors.

As for the comments suggesting that a DV could help consumers with the relationship between portion size and calorie intake and to make informed food selections, we note that the declaration of “Calories” can by itself alert consumers to the amount of calories in a serving of a food and assist consumers to make informed decisions about their food selections based on the calorie content.

As for the comments suggesting different percent DVs for calories, the comments did not indicate what those DVs would be or how we might calculate them. Therefore, for the same reasons we expressed earlier in this response, we do not have sufficient information to set a DV or multiple DVs, and so the final rule does not establish a percent DV for calories. However, we consider that a statement about daily calorie intake (2,000 calories) should be a necessary part of the footnote in the Nutrition Facts label because 2,000 calories is consistent with widely used food plans and will serve as a basis for menu labeling (79 FR 71156, December 1, 2014). Likewise, the second sentence of the footnote will state: “2,000 calories a day is used for general nutrition advice” (see part II.Q.11).

F. Fat

The preamble to the proposed rule (79 FR 11879 at 11893 through 11899) discussed considerations related to definitions, declaration, and DRVs for total fat, saturated fat, trans fat, monounsaturated fat, and polyunsaturated fat.

1. Total Fat

a. Definition. Our preexisting regulations at § 101.9(c)(2) define “fat, total” or “total fat” as a statement of the number of grams (g) of total fat in a serving defined as total lipid fatty acids and expressed as triglycerides.

In the preamble to the proposed rule (79 FR 11879 at 11893), we discussed a 1997 citizen petition submitted by Nabisco, Inc. (Docket No. FDA-1997-P-0476) asking us to amend the definitions of “total fat” and “saturated fat” to clarify that acetic, propionic, and butyric acids may be excluded when calculating the amount of fat in a food product. We tentatively concluded that the petitioner did not provide a scientific basis on which we could rely to propose to exclude acetic, propionic, Start Printed Page 33783and butyric acids from the definition of total fat based on differences in chemical composition. We therefore, did not propose any changes to the definition of “total fat” found in § 101.9(c)(2).

To clarify what we consider to be a fatty acid, we proposed to define “fatty acids” in § 101.9(c)(2) as “aliphatic carboxylic acids consisting of a chain of alkyl groups and characterized by a terminal carboxyl group.” We explained that this definition is consistent with other similar definitions found in nutrition and chemistry references (79 FR 11879 at 11893).

(Comment 83) Several comments supported our current definition of “total fat” and our proposed definition of “fatty acids.” The comments also agreed with our tentative conclusion that acetic, propionic, and butyric acids should continue to be included in the definition of total fat because they are short-chain fatty acids and that the basic chemical group (i.e., the terminal carboxyl group attached to a chain of alkyl groups containing carbon atoms) should remain the main defining factor of a fatty acid.

However, one comment suggested that acetic and propionic acids should not be considered fatty acids, but that butyric acid should be considered both a fatty acid and a saturated fatty acid. The comment cited the International Union of Pure Applied Chemistry (IUPAC) definition of fatty acids, which indicates that “natural fatty acids commonly have a chain of 4 to 28 carbons” (Ref. 27). The comment noted that acetic and propionic acid have 2 and 3 carbon chains, respectively, so the comment said extending the definition of fatty acids to these two substances is unjustified. Furthermore, the comment said that acetic and proprionic acids are not functionally fatty acids because acetic acid is a primary component of vinegar and propionic acid is most commonly used as a food stabilizer or anti-microbial agent in the form of sodium or ammonium salts, and is also used in its free form as a taste additive.

(Response) We agree that butyric acid should be considered both a fatty acid and a saturated fatty acid. However, we disagree that acetic acid and propionic acid should be excluded from the declaration of total fat based on their carbon chain length. The IUPAC definition provided says that fatty acids “commonly” have a chain length of 4 to 28 carbons, but this definition does not exclude the possibility that there may be fatty acids with carbon chain lengths of less than 4 carbons. Furthermore, other definitions of fatty acids include monocarbonic acids with chain lengths between 1 and nearly 30 carbon atoms (79 FR 11879 at 11893). The final rule, therefore, does not change our pre-existing definition of “total fat.”

The comment noted that acetic acid is most commonly found in the human diet in vinegar, either separately or as an ingredient, and is responsible for its distinctive odor and taste. The comment noted that propionic acid is used in food as a stabilizer, anti-microbial agent, and as a taste additive. The comment used this information to explain why these acids are not functionally fatty acids rather than explaining how the function of acetic and propionic acids differ from those of other fatty acids. Therefore, the comment did not provide sufficient information for us to consider in determining whether acetic and propionic acid should be excluded from the declaration based on their functional attributes, and we have finalized the definition of “fatty acids” in § 101.9(c)(2) without change.

(Comment 84) One comment recommended that consumer education is warranted to make consumers aware that the physiological effects of acetic, propionic, and butyric acids are different from the health effects that have been linked to longer-chain fatty acids.

(Response) The health effects of acetic, propionic, and butyric acids have not been well established in the scientific literature. Therefore, it would be premature to provide consumer education on acetic, propionic, and butyric acids until more is known about these acids.

b. Mandatory declaration. Section 403(q)(1)(D) of the FD&C Act requires the declaration of the amount of total fat on food labels. Consequently, the Nutrition Facts label includes the mandatory declaration of the gram amount for total fat in § 101.9(c)(2).

The preamble to the proposed rule (79 FR 11879 at 11893) stated that the 2010 DGA recognizes that the types of fatty acids consumed are more important in influencing the risk of CVD than the total amount of fat in the diet. It also stated that current dietary recommendations and clinical guidelines encourage replacing saturated and trans fatty acids with beneficial fats, such as polyunsaturated and monounsaturated fatty acids, and that a high intake of most types of saturated fatty acids, trans fatty acids, and cholesterol can increase LDL cholesterol levels, which in turn may increase the risk of CHD (id.). Although we concurred with the 2010 DGA that consuming a diet low in saturated fatty acids and cholesterol is more important for reducing CVD risk than consuming a diet low in total fat, we tentatively concluded in the preamble to the proposed rule that mandatory declaration of total fat on the Nutrition Facts label continues to be necessary to assist consumers in maintaining healthy dietary practices (id.) for the following reasons:

  • Total fat is a calorie-yielding macronutrient and an important piece of the macronutrient profile of a food;
  • Consumption of a low fat, high carbohydrate diet can increase the risk of chronic diseases such as CHD and type 2 diabetes; and

Increased fat intake, as a result of increased saturated fat intake, has been shown to increase LDL cholesterol concentrations, and therefore risk of CHD.

(Comment 85) Several comments supported the mandatory declaration of total fat on the Nutrition Facts label. The comments suggested that retaining the declaration of total fat also would help consumers who are trying to consume foods with a lower calorie density because foods higher in fat have a higher caloric density. (Caloric density is the amount of calories per unit of food weight.) Some comments provided evidence to show that consumption of a lower-fat, lower-calorie diet promotes weight loss, weight maintenance, and the reduction in risk of diabetes. Other comments stated that consumers can use a food's total and saturated fat content to estimate its unsaturated fat content. As discussed in part II.F.4, replacing saturated fats with unsaturated fats can lower LDL cholesterol levels and the risk of CVD.

Other comments disagreed with our conclusion and suggested that, rather than listing total fat on the label, we should require the declaration of the amount of each type of fat (i.e., saturated fat, trans fat, polyunsaturated fat, and monounsaturated fat). The comments noted that total fat consumption is no longer emphasized in the DGA. Instead consumers are advised to limit their consumption of saturated and trans fats, and replace them with monounsaturated and polyunsaturated fats. One comment questioned whether including total fat on the label may inadvertently discourage consumers from selecting foods that appear to be high in fat without regard to the source of fat.

(Response) We agree, in part, and disagree, in part, with the comments. As we stated in the preamble to the proposed rule (79 FR 11879 at 11893), we agree with the recommendations of the 2010 DGA that the types of fatty acids consumed are more important in influencing the risk of CVD than the total amount of fat in the diet. However, Start Printed Page 33784we decline to remove the declaration of total fat from the label as some comments suggested. Total fat continues to be associated with the risk of chronic disease and so a declaration of total fat provides important information about the nutrient profile of a food (79 FR 11879 at 11893). Increased fat intake, as a result of increased saturated fat intake, has been shown to increase LDL cholesterol concentrations, and therefore risk of CHD.

As for the comment asserting that including total fat on the label may inadvertently discourage consumers from selecting healthful foods because of the amount of total fat declared on the label, the comment did not provide any data or other information to support the assertion. We recognize that how a total fat declaration may be understood and used by consumers could have important implications for how we focus our consumer education.

c. DRV. The DRV for total fat is 30 percent of calories (65 grams/day) (§ 101.9(c)(9)). The proposed rule would not change the DRV. The preamble to the proposed rule (79 FR 11879 at 11894) discussed the absence of an AI and RDA for total fat and how the IOM established an AMDR for total fat intake of 20 to 35 percent of energy for adults and an AMDR of 25 to 35 percent of energy for children age 4 to 18 years. (The AMDRs are associated with reduced risk of chronic diseases, such as CHD, while providing for adequate intake of essential nutrients.) We noted that the 2010 DGA acknowledged the IOM's AMDR and indicated that total fat intake should fall within the AMDRs set by the IOM. We explained that the IOM Labeling Committee recommended a population-weighted midpoint of the AMDR because AMDRs vary with age; thus, a population-weighted mid-point of the AMDR for adults, i.e., 20 to 35 percent, yields a DRV of 28 percent or 62 grams of total fat. However, we declined to adjust the DRV because we concluded, in the preamble to the proposed rule (79 FR 11879 at 11894), that the upper level of the AMDR of 35 percent of 2,000 calories as the basis for a DRV would provide no meaningful health benefit and that a population-weighted mid-point of 28 percent of the AMDR (28 percent of calories) as the basis for the DRV is not significantly different from a public health outcome standpoint than the current value of 30 percent of calories.

(Comment 86) One comment agreed that we should not change the DRV for total fat. The comment noted that there is little or no advantage to making a change on this basis because the actual change in the DRV amount is minimal compared to the cost and effort required to educate consumers about the rationale for the change and its significance related to dietary choices.

One comment said we should reduce the DRV for total fat to 40 grams/day (18 percent of calories based on a 2,000 calorie diet), but the comment did not provide a rationale or other information to support the recommended change.

Another comment suggested that we eliminate the DRV for total fat to allow consumers to focus on replacing saturated fats with unsaturated fats. The comment stated that the types of fat consumed are more important in influencing the risk of heart disease than is the total amount of fat. The comment noted that current dietary recommendations and clinical guidelines recommend replacing saturated and trans fats with polyunsaturated and monounsaturated fats to reduce the risk of heart disease.

(Response) Since we published the proposed rule in the Federal Register, new information and evidence has become available that corroborates the position that the types of fats consumed are more important in influencing the risk of heart disease than is the total amount of fat. The 2015 DGAC concluded that strong and consistent evidence from randomized controlled trials shows that replacing saturated fatty acids with unsaturated fats, especially polyunsaturated fatty acids, significantly reduces total and LDL cholesterol. The 2015 DGAC also concluded that there is strong evidence that dietary patterns that are lower in saturated fat, cholesterol, and sodium and richer in fiber, potassium, and unsaturated fats are beneficial for reducing CVD risk. The 2015 DGAC noted that, in low-fat diets, fats are often replaced with refined carbohydrates and this is of particular concern because such diets are generally associated with changes in blood cholesterol levels associated with an increased risk of disease. The 2015 DGAC suggested that dietary advice should put the emphasis on optimizing types of dietary fat consumed and not on reducing total fat intake. The 2015-2020 DGA did not include a recommendation that Americans should reduce their intake of total fat, but did recommend that sources of saturated fat should be replaced with unsaturated fat, particularly polyunsaturated fatty acids (Ref. 28). These recommendations and conclusions are supported by the Lifestyle Management Report and the evidence reviewed for the NHLBI Lifestyle Evidence Review (Refs. 17-18).

We disagree with the comment recommending the elimination of the declaration of the percent DV for total fat because we have concluded that the declaration of the amount of total fat is necessary to assist consumers in maintaining healthy dietary practices and the percent DV declaration can help consumers put the gram amount of total fat declared on the label into the context of their total daily diet. Furthermore, the comment did not explain how removing the declaration of the percent DV for total fat from the label will help consumers focus on replacing saturated fats with monounsaturated fats, especially if the total gram amount of total fat in a serving of a product is still declared on the label. Therefore, we decline to remove the declaration of the percent DV for total fat from the label.

We also disagree that the DRV for total fat should be decreased from 65 grams/day to 40 grams/day. The comment did not provide a basis for the change, so, absent data or evidence to support decreasing the DRV, we do not have sufficient information to support the change and also are unable to determine if the change would be appropriate.

Although we disagree with the comment suggesting that we eliminate the percent DV declaration for total fat, we are reconsidering our position that increasing the DRV for total fat to 35 percent, which is the upper end of the AMDR range, would provide no meaningful health benefit. The scientific community continues to focus on the types of fats consumed and less on the total amount of fat consumed. Current clinical guidelines and dietary recommendations do not include guidance or recommendations to limit total fat. We do not place limitations on the total amount of fat. We are concerned that keeping the DRV for total fat of 30 percent of calories may be misinterpreted as advising consumers to limit their intake of total fat to 30 percent or less. It is also conceivable that consumers could view foods which are good sources of mono and polyunsaturated fats negatively because their percent DV declaration for total fat is high. Given that current dietary recommendations and clinical guidelines corroborate our action to not place limitations on the total amount of fat which should be consumed and acknowledge that replacing total fat in the diet with carbohydrates can have negative health effects, we have reconsidered our statement that the upper level of the AMDR of 35 percent would provide no meaningful health benefit compared to the current value of 30 percent calories. Thus, we are increasing the DRV for total fat from 30 percent of calories to 35 percent of Start Printed Page 33785calories, which results in a DRV of 78 grams.

d. Declaration of total fat. The proposed rule would not change the preexisting requirement for mandatory declaration of total fat on the Nutrition Facts label.

(Comment 87) Several comments recommended decreasing the prominence of total fat on the label while increasing the prominence of saturated and trans fatty acids because the scientific evidence shows that the type of fat consumed is more important than the total amount consumed. The comments stated that more emphasis on saturated and trans fatty acids could help consumers reduce their intake of these types of fats. One comment recommended that the total fat declaration should be listed right after protein and carbohydrate on the label to reduce its prominence. The comment suggested that this change is necessary because high fat diets have been proven to reduce body weight, normalize blood sugars for diabetics, improve cardiac risk profiles, and reduce the risk for other comorbidities, such as the risk of stroke.

(Response) We decline to change the order of nutrients on the label to decrease the prominence of total fat. Fat is one of three major macronutrients in the diet. The listing of the amount of total fat in a product provides valuable information to the consumer about the nutrient profile of a food. While we agree that it is important for consumers to consider the amount of saturated and trans fat in a product, these fatty acids are components of total fat. They are indented and listed below total fat on the Nutrition Facts label so that consumers can see that they are part of the total fat declaration. If the declaration of the amount of total fat in a product is separated from the declaration of its components, as suggested in the comment recommending its placement below carbohydrate and protein, it could appear as though saturated and trans fat are not part of the total fat declaration.

As for the comment suggesting that high fat diets have been proven to be beneficial for weight loss and to have other beneficial health effects, the comment did not provide evidence related to how the order of nutrients on the label may impact consumers wishing to follow a high fat diet. Without such evidence, we are unable to evaluate the impact of the suggested change in the order of nutrients declared on the label.

(Comment 88) Some comments recommended declaring total fat as a percentage of the total weight of a product or as a percentage of calories in a serving of the product. One comment expressed concern that some manufacturers are making false claims about the percentage of fat in a product, and the comment suggested that knowing the percentage attributed to the total weight of the food by the fat in the product would be beneficial for consumers. The comment also stated that most calculations of body fat and daily intakes are expressed as percentages.

(Response) We decline to require the declaration of total fat as a percentage of the weight of the food or as a percentage of calories in a serving of the product.

We disagree that declaration of the amount of fat as a percentage of weight or as a percentage of calories would be helpful to consumers in maintaining healthy dietary practices. Information found on the label can be used to determine the amount of a nutrient in a food so that it can be used for product comparison or to determine how the food contributes towards recommended amounts of nutrients (see part I.B). The declaration of a percentage of weight that is attributable to the total fat content of a food product would not allow for easy product comparison and would not allow a consumer to determine how the product compares to dietary recommendations for total fat. Dietary recommendations for total fat are provided in grams rather than in percentages (Ref. 29).

Additionally, as discussed in part II.E.1, we are removing calories from fat from the label because the type of fat consumed is more relevant in reducing the risk of CHD than overall total fat intake. Therefore, the declaration of a percentage of calories from fat also is unwarranted.

2. Saturated Fat

a. Definition. Our preexisting regulations define “Saturated fat” in § 101.9(c)(2)(i) as the sum of all fatty acids containing no double bonds. We did not propose to change the definition.

(Comment 89) Most comments supported our decision not to revise the definition of saturated fat. However, one comment argued that we should exclude the short-chain fatty acids, acetic acid and proprionic acid, from the definition of both total fat and saturated fat, but another short-chain fatty acid, butyric acid, could remain in the definitions. The comment argued that both acetic acid and proprionic acid have carbon chains shorter than four carbons and that the International Union of Pure Applied Chemistry (IUPAC) has a definition of fatty acids which indicates that “natural fatty acids commonly have a chain of 4 to 28 carbons” (Ref. 27).

(Response) We decline to exclude acetic and propionic acid from the declaration of saturated fat based on the length of the carbon chains for reasons already discussed in part II.F.1.

b. Mandatory declaration. Section 403(q)(1)(D) of the FD&C Act requires the declaration of the amount of saturated fat on food labels. Accordingly, our preexisting regulations require mandatory declaration of the gram amount for saturated fat (§ 101.9(c)(2)). We did not propose any changes to the mandatory declaration of the gram amount for saturated fat.

(Comment 90) Most comments supported our decision not to change the mandatory declaration of saturated fat.

Other comments opposed listing saturated fats because, the comments said, saturated fats are not detrimental to health. One comment that suggested we should break down saturated fat further into medium chain and long chain saturated fatty acids because medium chain saturated fatty acids are beneficial to health, while long chain saturated fatty acids are not.

(Response) We disagree that the Nutrition Facts label no longer needs to list saturated fats and also decline to break down saturated fat further into medium chain and long chain saturated fatty acids. Section 403(q)(1)(D) of the FD&C Act requires the declaration of the amount of saturated fat on food labels, and, in the preamble to the proposed rule (79 FR 11879 at 11895), we described how dietary recommendations continue to recognize the well-established relationship between consumption of saturated fat, which include all saturated fatty acids chain lengths, and its effect on blood cholesterol levels. In addition, the 2010 DGA provided scientific evidence supporting a quantitative intake recommendation for saturated fat which likewise, include all saturated fatty acid chain lengths.

The comments suggesting that saturated fat did not need to be declared or should be further broken down by chain length did not provide any information that could be used to contradict the dietary recommendations, nor did they provide information that would enable us to determine that the nutrient information is no longer necessary to assist consumers in maintaining healthy dietary practices (as section 403(q)(2)(B) of the FD&C Act requires when removing nutrient information). Thus, based on the science and dietary recommendations and the absence of evidence indicating that the Start Printed Page 33786information is no longer necessary to assist consumers in maintaining healthy dietary practices, we are retaining the declaration of saturated fat in the Nutrition Facts label.

c. DRV. Under our preexisting regulations at § 101.9(c)(9), the DRV for saturated fat is 20 grams, which is 10 percent of calories based on a 2,000 reference calorie intake level. In the preamble to the proposed rule (79 FR 11879 at 11895), we discussed how current consensus reports, such as the IOM DRIs, the 2010 DGA, and a 2002 report from the National Cholesterol Education Program of the NIH National Heart, Lung, and Blood Institute, continue to recommend saturated fat intakes of no more than 10 percent of calories, based on risk of CVD. Additionally, the scientific evidence in the 2015-2020 DGA supports limiting calories from saturated fat which corroborates the consensus reports. Consequently, we did not propose to change the DRV for saturated fat in § 101.9(c)(9).

(Comment 91) Many comments supported our decision to keep the existing saturated fat DRV of 20 grams, but some comments would have us lower the DRV to 6 or 7 percent of calories. The comments indicated that this range would calculate to a DRV of approximately 13 to 15 grams of saturated fat. Other comments noted that recent guidelines published by the American Heart Association and American College of Cardiology, in collaboration with the National Heart, Lung, and Blood Institute, concluded that no more than 5 to 6 percent of calories should come from saturated fat. One comment also argued that the saturated fat DRV was too low and that human diets, both historical and among different cultures, are consistent with diets higher in saturated fat and that current science supports higher levels of intake.

Two comments suggested that we remove stearic acid from any calculation of the percent DV. The comments argued that the DRV is based on adverse physiological effect and that each saturated fatty acid should be considered individually regarding these effects. The comments suggested that a percent DV for saturated fat of an individual food could be calculated using different weighting factors for saturated fatty acids dependent on the level of adverse effect of each individual fatty acid. The comments also argued that, because stearic acid is neutral in regard to effects on levels of serum total and LDL-cholesterol compared to other saturated fatty acids, stearic acid would end up being left out of the calculation for the percent DV.

(Response) We decline to revise the DRV for saturated fat. As we discussed in the preamble to the proposed rule (79 FR 11879 at 11895), current consensus reports reviewing the scientific evidence related to saturated fatty acid intake continue to support saturated fat intakes of no more than 10 percent of calories, based on risk of CVD. For example, the scientific evidence in the 2010 DGA (Ref. 30) supports reducing saturated fatty acid intake to less than 10 percent of calories, and the scientific evidence in the 2015 DGAC supports retaining the 10 percent upper limit for saturated fat intake. These guidelines apply to intake levels for the general population. Other guidelines that support lower than 10 percent of calories do exist for therapeutic uses, which would apply to specific populations in need of, for example, lowering of LDL cholesterol levels in the blood (Ref. 31). These are specific populations such as those with diagnosed heart disease or type 2 diabetes, those with family histories of high blood cholesterol, and others with high risk for CVD (Ref. 32).

As for the comment claiming that the DRV for saturated fat is too low, the comment did not provide evidence for increasing the DRV, and we are unaware of current scientific information that would support an increase. The current dietary recommendations for intake of saturated fatty acids, of less than 10 percent of calories, are still applicable to the general U.S. population. Thus, the existing DRV of 20 grams is consistent with the scientific evidence supporting a maximum intake level that covers the general U.S. population.

We also disagree with comments that would exclude stearic acid from the calculation of an individual food's percent DV for saturated fat. The scientific evidence supporting the current dietary recommendations for saturated fat, does not differentiate among the individual saturated fatty acids. The scientific evidence relates to the intake of all saturated fatty acids combined, and this would include stearic acid. We note that the 2015-2020 DGA recommendation to consume less than 10 percent of calories from saturated fatty acids makes no specific exclusion of stearic acid and, instead, relates to the intake of total saturated fatty acids (Ref. 28). Because the DRV is based on the intake of all saturated fatty acids, determination of percent DV is also based on content of all saturated fatty acids in the individual food.

3. Trans Fat

a. Definition. Our preexisting regulations, at § 101.9(c)(2)(ii), define “Trans fat” or “Trans” as the sum of all unsaturated fatty acids that contain one or more isolated (i.e., non-conjugated) double bonds in a trans configuration. The proposed rule would not change the definition.

(Comment 92) Most comments supported our decision to retain the definition of trans fat.

One comment, however, said that the physiological effects of trans fat from ruminant sources differs from the effects of trans fat from industrial sources (i.e., partially hydrogenated oils). The comment said we should exclude trans fat from ruminant sources from the definition of trans fat.

(Response) We decline to exclude trans fat from ruminant sources from the definition of trans fat. Trans fat is generally understood to be any unsaturated fatty acid that contains a double bond, regardless of source (Ref. 29). Additionally, as we stated in the preamble to the proposed rule (79 FR 11879 at 11896), the chemical definition is consistent with how we define polyunsaturated fat as cis, cis-methylene-interrupted (§ 101.9(c)(2)(ii)).

We also note that, in the Federal Register of June 17, 2015 (80 FR 34650), we issued a declaratory order making a final determination that there is no longer a consensus among qualified experts that partially hydrogenated oils (PHOs), which are the primary dietary source of industrially produced trans fatty acids (IPTFA) are generally recognized as safe (GRAS) for any use in human food. The major provisions of our declaratory order were that:

  • PHOs are not GRAS for any use in human food;
  • Any interested party may seek food additive approval for one or more specific uses of PHOs with data demonstrating a reasonable certainty of no harm of the proposed use(s); and
  • For the purposes of the declaratory order, FDA defined PHOs as those fats and oils that have been hydrogenated, but not to complete or near complete saturation, and with an iodine value (IV) greater than 4.

We established a compliance date of June 18, 2018 for the declaratory order.

b. Mandatory declaration. Our preexisting regulations, at § 101.9(c)(2)(ii), require the declaration of trans fat on the Nutrition Facts label (§ 101.9(c)(2)(ii)). In the preamble to the proposed rule (79 FR 11879 at 11896), we tentatively concluded that information on the amount of trans fat in food products allows consumers to Start Printed Page 33787reduce their intake of trans fat, and thus, reduce the risk of CHD, so we did not propose to change this requirement. However, we also stated that, in the Federal Register of November 8, 2013 (78 FR 67169), we had published a tentative determination that partially hydrogenated oils (PHOs), the source of industrially produced trans fat, may not be generally recognized as safe (GRAS), and we invited comment on whether mandatory labeling of trans fat would still be necessary if we finalized our determination (79 FR 11879 at 11896).

(Comment 93) Regarding the mandatory declaration of trans fat, all comments supported our decision to continue requiring the declaration of trans fats.

With respect to the GRAS determination of PHOs, the comments were divided. Some comments supported requiring the declaration of trans fats on the label regardless of the final GRAS determination; other comments supported removing the declaration of trans fat from label if PHOs are no longer GRAS.

The comments supporting the declaration of trans fat on the label, even if PHOs are no longer declared GRAS, discussed the continued presence of trans fat in products even after PHOs are removed from foods. The comments explained that trans fat could come from both natural sources, such as the trans fat in dairy products, and from uses of oils that are either currently allowed as food additives or could potentially be permitted in the future. The comments said that trans fat content is still information that consumers need even if total overall presence in the food supply is reduced.

Other comments supporting removal of the trans fat declaration if PHOs are no longer GRAS said that, if PHOs are no longer GRAS, most foods would not have any trans fat, except for the trans fat that comes from animal sources. Thus, to these comments, few foods would have declarable levels of trans fat, and most foods would indicate a trans fat content of zero. Because so few foods would contain trans fat, the comments stated, a trans fat declaration would no longer be needed on the label. Some comments also noted that animal products, such as dairy, are considered part of normal, healthful diets, and trans fat information on those products is not necessary. Some comments, however, did suggest that if trans fat from animal sources exceeded a certain level, such as 1.0 g per serving, then we should require its disclosure on the label.

(Response) Based on the available scientific evidence and the findings of expert scientific panels, in the Federal Register of June 17, 2015 (80 FR 34650), we published a declaratory order stating that PHOs are not GRAS for any use in human food. Although we have made this determination regarding PHOs, some trans fats will continue to be present in foods. For example, the declaratory order provided a compliance date of June 18, 2018; this gives manufacturers up to 3 years to remove PHOs, and the accompanying trans fats in PHOs, from foods. The 3 years also provides time for manufacturers to petition us for approval of PHOs as food additives, which could allow PHOs to be included in food in certain circumstances. Moreover, trans fat will always be naturally present in foods from ruminant sources (e.g., beef products and dairy foods). Using the latest data from the Gladson database (data current as of March 2015), we calculate that, based on the Gladson values, there could potentially be more than 5,000 foods remaining with declarable levels of trans fat, after removal of PHOs. Thus, it is premature to consider removing trans fat from the Nutrition Facts label at this time. We expect there to be a great deal of reformulation of products over the next 3 years, and we will need to evaluate the remaining trans fat content in foods, both from approved or potentially approved food additive uses of PHOs and from naturally occurring trans fat, after the expected reformulations have occurred. We will then be able to consider whether, in light of any remaining trans fat content in foods, declaring trans fat on the label continues to assist consumers in maintaining healthy dietary practices. Until such time, however, the scientific evidence continues to support the need to inform consumers about the continued presence of trans fat in foods.

c. DRV. Our preexisting regulations do not provide a DRV for trans fat. In the preamble to the proposed rule (79 FR 11879 at 11896 through 11897), we described various efforts (such as the use of ANPRMs) to consider determining a DRV for trans fat, including the use of food composition data, menu modeling and data from dietary surveys, and a potential joint percent DV for trans fat and saturated fat. We described how a number of evaluations of the existing scientific evidence were not able to set a definitive quantitative intake recommendation for trans fat. We tentatively concluded that there was not a basis for setting a DRV for trans fat, and so we did not propose a DRV for trans fat.

(Comment 93a) Most comments agreed that the scientific evidence is insufficient to set a DRV. In contrast, two comments said we should set a DV for trans fat, but did not provide information that would enable us to establish a DRV.

(Response) We decline to revise the rule to establish a DV for trans fat. The comments did not provide information that would enable us to establish a DV, and, as we discussed in the preamble to the proposed rule (id.), consensus reports were unable to determine a specific level of trans fat intake that would likely pose no risk of adverse health effects. The IOM, for example, said that a DV for trans fat could not be established because “any increase in trans fat intake increases CHD risk but because trans fats are unavoidable in ordinary diets, consuming zero percent of calories would require significant changes in dietary intake patterns that may introduce undesirable effects and unknown and unquantifiable health risks” (Ref. 29). We continue to adhere to the recommendation from the IOM that trans fatty acid consumption be as low as possible while consuming a nutritionally adequate diet.

d. Declaring the amount of trans fat. Our preexisting regulations, at § 101.9(c)(2)(ii), state that, if the serving contains less than 0.5 grams, the content declared on the Nutrition Facts label must be expressed as zero. For most nutrients, the maximum amount permitted for a zero declaration is governed by the limitations associated with analytical methods available, and, in the preamble to the proposed rule (79 FR 11879 at 11896), we said that validated analytical methodologies that provide sensitive and reliable estimates of trans fatty acids in all foods at levels below 0.5 grams per serving are currently not available. Thus, we did not propose to change the requirements for a zero declaration of trans fat.

(Comment 94) Several comments asked us to lower the maximum amount permitted for a zero declaration. The comments provided several different values, such as 0.0 grams, 0.05 grams, 0.1 grams, and 0.2 grams, as alternatives to the preexisting value of 0.5 grams. The comments argued that even very small amounts of trans fat in a food (i.e., less than 0.5 grams) could be harmful to consumers' health, and consumers should know if foods contained any trans fat at all. Most comments did not address the issue of a lack of validated analytical methodologies. One comment did, however, state that a validated analytical methodology did exist to detect trans fat below 0.5 grams per Start Printed Page 33788serving and cited AOAC 996.06 (Ref. 33).

(Response) We agree that consumers should be informed of trans fat content in foods. With the current analytical methodologies, however, quantification of trans fat content in foods is limited. When determining the maximum amount permitted for a zero declaration, we need to consider, for compliance purposes, whether the trans fat content at those low levels can be reliably and accurately measured in all foods by an analytical method(s) that has been validated to do so. Currently, there are no validated analytical methods to determine trans fat content at levels less than 0.5 grams for all foods.

With respect to the comment that cited AOAC 996.06 as a methodology to detect trans fat, AOAC 996.06 does not provide validation data for trans fatty acids. AOAC 996.06 does provide validation data for total fat, saturated fat, and monounsaturated fat (Ref. 33). We are aware of ongoing efforts for validation of improved analytical methods for trans fat (Ref. 34), and if new validated methods become available, we may reevaluate the threshold for a zero declaration of trans fat.

4. Monounsaturated Fat and Polyunsaturated Fat

a. Voluntary declaration. Our preexisting regulations, at § 101.9(c)(2)(iii) and (iv), permit, but do not require, the declaration of monounsaturated fat (defined as cis-monounsaturated fatty acids (e.g., oleic acid)) and the declaration of polyunsaturated fat (defined as cis, cis-methylene-interrupted polyunsaturated fatty acids) on the Nutrition Facts label.

The preamble to the proposed rule (79 FR 11879 at 11897 through 11899) described how we considered recommendations in current consensus reports, as well as comments received in response to the 2007 ANPRM in which we requested comment on whether declaration of monounsaturated fat and polyunsaturated fat should remain voluntary or be made mandatory. We noted that we have been unable to set a DRV for monounsaturated fat and polyunsaturated fat due to the absence of DRIs for both (id.)

Consistent with the 2010 DGA, the 2015-2020 DGA recommends that foods high in saturated fats should be replaced with foods high in unsaturated fats (Ref. 28).

(Comment 95) One comment supported voluntary declaration of monounsaturated and polyunsaturated fats and said that omitting unsaturated fats would reduce label clutter.

(Response) While it is possible that omitting unsaturated fats would reduce label clutter, our reason for not requiring the declaration of monounsaturated or polyunsaturated fats is due to the lack of a DRV and our consideration of the factors for mandatory and voluntary declaration for these types of nutrients. We consider voluntary declaration to be appropriate when the nutrient either has a quantitative intake recommendation, but does not have public health significance or does not have a quantitative intake recommendation available for setting a DRV, but has public health significance.

(Comment 96) Some comments supported voluntary declaration of monounsaturated and polyunsaturated fats because, according to the comments, they were a key recommendation in the 2010 DGA, “Consume less than 10 percent of calories from saturated fatty acids by replacing them with monounsaturated and polyunsaturated fatty acids.”

Other comments supporting mandatory declaration of monounsaturated and polyunsaturated fats also referred to the 2010 DGA recommendation. Some comments asserted that being a key recommendation was sufficient for mandatory listing of added sugars and claimed that we were being inconsistent with the use of dietary guidance recommendations, especially because the scientific evidence is stronger for monounsaturated and polyunsaturated fats than for added sugars.

(Response) We proposed to retain the voluntary declaration of monounsaturated and polyunsaturated fats based on the factors identified for the mandatory and voluntary listing of these types of non-statutory nutrients. While added sugars is not a statutory nutrient, we are requiring the declaration of added sugars based on the need for consumers to have this information, which relates to a dietary pattern, to assist consumers to maintain healthy dietary practices and not based on a specific relationship of added sugars to chronic disease risk. Thus, the basis for requiring the declaration of added sugars differs from that for monounsaturated and polyunsaturated fats. We acknowledge that the 2010 DGA provided a key recommendation for monounsaturated and polyunsaturated fats because of the strong evidence (79 FR 11879 at 11898); however, some evidence supporting this is replacing saturated fat with monounsaturated and polyunsaturated fats. Because saturated fat is on the label, we believe consumers can use that information in addition with total fat DV to maintain healthy dietary practices. The scientific evidence for added sugars (and solid fats) is based on the modeling of dietary patterns to ensure adequate consumption of nutrient dense foods and avoidance of excess empty calories that can lead to weight management issues and obesity.

(Comment 97) One comment supporting mandatory declaration noted that the 2010 DGA stated that there is well established evidence that replacing saturated fat with monounsaturated and polyunsaturated fat lowers LDL cholesterol and has health benefits.

(Response) We agree that there is well established evidence that replacing saturated fat with monounsaturated and polyunsaturated fats lowers LDL cholesterol and therefore reduces the risk of heart disease, and the preamble to the proposed rule (79 FR 11879 at 11897 through 11898) discussed how replacing saturated fatty acids with monounsaturated or polyunsaturated fats reduced blood LDL cholesterol levels. A quantitative intake recommendation, however, is not available for either monounsaturated or polyunsaturated fat. Therefore, in considering the factors for mandatory or voluntary declaration, we determined that monounsaturated and polyunsaturated fat warrants voluntary declaration.

An FDA health claim is available for the labeling of foods: “Replacing saturated fat with similar amounts of unsaturated fats may reduce the risk of heart disease. To achieve this benefit, total daily calories should not increase” (see “Health Claim Notification for the Substitution of Saturated Fat in the Diet with Unsaturated Fatty Acids and Reduced Risk of Heart Disease”) (Ref. 35).

(Comment 98) One comment supported mandatory declaration of polyunsaturated fat because, according to the comment, polyunsaturated fat includes essential nutrients.

(Response) We agree that polyunsaturated fat includes essential fatty acids (i.e., linoleic and alpha linolenic acid). We disagree, however, that the listing of polyunsaturated fat should be mandatory for this reason. Essentiality of a nutrient is not factor considered for the mandatory or voluntary labeling of these types of non-statutory nutrients, other than essential vitamins and minerals. The basis for proposing voluntary declaration of polyunsaturated fat was because of its role in reducing the risk of CVD when replacing saturated fat, which has public health significance.Start Printed Page 33789

(Comment 99) One comment supporting mandatory declaration noted that the 2002 IOM report (Ref. 29) concluded that the type of fat, rather than total fat, was relevant to health and the 2010 DGA shifted the focus from total fat to the type of fat. Another comment noted that we were no longer requiring “Calories from fat” because the focus is more on the type of fat. Several comments supporting mandatory declaration of monounsaturated and polyunsaturated fats noted that it is not possible to identify these types of fats which have health benefits, and, therefore, it is not possible to differentiate from unhealthy fats. One comment said that listing these fats can help people distinguish between fatty foods that can be eaten more often compared to those with higher saturated fat content to be eaten less often.

Other comments supporting mandatory declaration claimed that consumers need to be able to compare products and select foods that are not only lower in saturated fat but contain monounsaturated and polyunsaturated fats.

(Response) We agree that the four chemically defined categories of type of fat (i.e., saturated, trans, monounsaturated fat, and polyunsaturated fat), rather than total fat, are relevant to health, specifically CVD risk. Current dietary recommendations no longer emphasize total fat. Certain categories of fatty acids are beneficial, while others categories have negative health effects, particularly related to CVD (see 79 FR 11879 at 11891). We recognize that monounsaturated and polyunsaturated fat have public health relevance when they replace saturated fat (id. at 11898). There is not a quantitative intake recommendation available, however, that identifies how much monounsaturated and polyunsaturated fat must replace saturated fat, and there is no dose-response relationship between mono- and polyunsaturated fats to risk of CHD, independent of saturated fat, similar to the relationship between trans fat and risk of CHD. Therefore, we decline to require the declaration of monounsaturated and polyunsaturated fat. A quantitative intake recommendation is a factor we considered for mandatory declaration of these types of non-statutory nutrients (79 FR 11879 at 11890).

b. DRV. The proposed rule would not establish DRVs for either monounsaturated or polyunsaturated fat because quantitative intake recommendations are not available for setting DRVs (79 FR 11879 at 11897, 11899).

(Comment 100) One comment agreed with not setting a DRV for monounsaturated or polyunsaturated fat because there is no agreed upon scientific basis for establishing a DV due to diverse nature of these fatty acids.

(Response) We maintain that there is an insufficient basis to set a DRV for either monounsaturated or polyunsaturated fat, so the final rule does not establish a DRV for either monounsaturated or polyunsaturated fat.

c. Declaration of individual polyunsaturated fatty acids. Polyunsaturated fats represent two general categories: n-6 and n-3 polyunsaturated fatty acids. The most common n-6 and n-3 polyunsaturated fatty acid in food is linoleic acid and α-linolenic acid, respectively. Other n-3 fatty acids found in foods, particularly in fish, are the long chain fatty acids, eicosapentaeneoic acid (EPA) and docosahexaenoic acid (DHA).

The preamble to the proposed rule (79 FR 11879 at 11898) discussed the possibility of establishing separate DRVs for linoleic acid and α-linolenic acid, and, if so, whether the declaration of these nutrients should be voluntary or made mandatory. We decided that, because of the lack of well-established evidence for a role of n-3 or n-6 polyunsaturated fatty acids in chronic disease risk and the lack of a quantitative intake recommendation, the declarations of n-3 and n-6 polyunsaturated fatty acids are not necessary to assist consumers to maintain healthy dietary practices. Thus, the proposed rule would not provide for the individual declaration of either n-3 or n-6 polyunsaturated fatty acids on the Nutrition Facts label. Similarly, because of the lack of well-established evidence for a role of EPA and DHA in chronic disease risk and the lack of a quantitative intake recommendation, the proposed rule would not provide for the declarations of EPA and DHA.

(Comment 101) Although some comments agreed with our decision not to require the declaration of n-3 or n-6 polyunsaturated fatty acids, other comments would revise the rule to allow for the voluntary declaration of the n-3 polyunsaturated fatty acids, eicosapentaeneoic acid (EPA), and docosahexaenoic acid (DHA). One comment supported the voluntary declaration of EPA and DHA because humans have a limited capability to synthesize, elongate, and desaturate α-linolenic acid (ALA) to EPA and DHA.

(Response) While humans may have a limited capability to elongate and desaturate ALA to EPA and DHA, we do not have evidence to demonstrate that biosynthesis of EPA and DHA is insufficient in the general population such that EPA and DHA are essential in the diet. Therefore, there is no basis on which we can rely to support a voluntary declaration.

(Comment 102) Other comments supporting the voluntary declaration of n-3 and n-6 polyunsaturated fatty acids noted that monounsaturated fat, polyunsaturated fat, sugars, soluble fiber, insoluble fiber, sugar alcohols, and added sugars are being allowed or required on the label but do not have a DV. Therefore, the comments argued, we should treat n-3 and n-6 polyunsaturated fatty acids in the same manner.

(Response) There is well-established evidence for the role of sugars, monounsaturated fat, polyunsaturated fat, soluble fiber, insoluble fiber, and sugar alcohols in reducing the risk of chronic disease or providing a beneficial physiological effect. Therefore, these nutrients have public health relevance, which is the basis for voluntary labeling. Specifically, there is strong evidence for sugars increasing the risk of dental caries (see 79 FR 11879 at 11902), as well as reducing the risk of dental caries when sugar alcohols replace sugar in the diet (id. at 11908). There also is well established evidence that replacing saturated fat with monounsaturated and polyunsaturated fat reduces the risk of CVD (Ref. 35). There is strong evidence that soluble fibers reduce the risk of CHD (see 79 FR 11879 at 11911). There is well established evidence that insoluble fibers can improve laxation, a beneficial physiological effect (Ref. 36). Moreover, the scientific evidence for added sugars differs from that for n-3 and n-6 polyunsaturated fatty acids. There is a strong association between a healthy dietary pattern characterized by a lower intake of sugar sweetened foods and beverages, as compared to less healthy dietary patterns, and a reduced risk of CVD. A DV is being provided for added sugars (see part II.H.3).

In contrast, there is supportive, but not conclusive, evidence to suggest that n-3 polyunsaturated fatty acids reduce the risk of CHD (Ref. 37). Furthermore, there is no conclusive evidence for an independent role of n-6 polyunsaturated fatty acids in reducing blood cholesterol levels, and consequently, risk of CHD (see 79 FR 11879 at 11898). Therefore, we disagree that there is a sufficient basis to treat n-3 and n-6 polyunsaturated fatty acids the same as Start Printed Page 33790the other nutrients discussed in the comment, so the final rule does not provide for voluntary declaration of n-3 and n-6 polyunsaturated fatty acids.

(Comment 103) One comment supporting the voluntary declaration of n-3 polyunsaturated fatty acids said that we could have reached the same conclusion for n-3 polyunsaturated fatty acid in the same way that we did for vitamin D. The 2010 DGA recommendation to increase the amount and variety of seafood in place of some meat and poultry was made to increase EPA and DHA in the American diet, as well as the total package of benefits seafood provides, including vitamin D.

(Response) We disagree that n-3 polyunsaturated fatty acids were handled differently than vitamin D. There is strong evidence for a relationship between vitamin D intake and risk of osteoporosis (see 79 FR 11879 at 11921). Furthermore, the IOM provided a quantitative intake recommendation (i.e., RDA) for vitamin D (Ref. 38). We considered the scientific evidence for this recommendation when setting an RDI (see our response to comment 372). In contrast, the evidence for n-3 polyunsaturated fatty acids is not well-established, and a quantitative intake recommendation is not available (see 79 FR 11879 at 11897 through 11899).

(Comment 104) Several comments supporting the voluntary declaration of n-3 polyunsaturated fatty acids stated that not providing information on n-3 polyunsaturated fatty acids affords the consumer little opportunity to apply important dietary guidance as in the 2010 DGA. The comments said that, while the IOM did not set a DRI for EPA and/or DHA, this is an insufficient reason for disallowing the voluntary declaration of these essential fatty acids on the Nutrition Facts label. The comments said that the DGA concluded that moderate evidence indicates that 250 mg EPA and DHA daily is associated with reduced cardiac deaths among individuals with and without preexisting CVD and this recommendation contributes to prevention of heart disease. The comments also noted that, while we have not authorized a health claim regarding EPA and DHA and CVD risk, we have allowed the use of qualified health claims for 10 years.

(Response) The 2010 DGA concluded that moderate evidence shows that the consumption of 8 ounces per week of a variety of seafood, which provides an average consumption of 250 mg per day of EPA and DHA, is associated with reduced cardiac deaths among individuals with and without preexisting CVD. A DGA key recommendation was not provided for EPA and DHA, but rather for seafood. It is not clear whether EPA and DHA per se, or other substances in fish contribute to cardiac deaths. The qualified health claim on EPA and DHA and CVD risk is supportive, but not conclusive, evidence to suggest that n-3 polyunsaturated fatty acids reduce the risk of CHD (Ref. 37). The factors for mandatory and voluntary labeling of these types of non-statutory nutrients on the Nutrition Facts label depend on strong (rather than moderate or inconclusive) evidence. Therefore, we disagree that the information provided in the 2010 DGA report is sufficient to warrant the voluntary declaration of EPA and DHA.

(Comment 105) One comment supporting the voluntary declaration of n-3 polyunsaturated fatty acids noted that an article on a summary of a workshop stated that, “National public health initiatives to increase n-3 fatty acid consumption are needed: The working group believes that data are currently sufficient to indicate that intake of n-3 fatty acids is suboptimal and a national and international initiative should be launched to shift n-3 fatty acid intake upward” (Ref. 39). Another comment cited a paper which concluded that a large percentage of the U.S. adult population is not meeting recommendations for omega-3 fatty acid consumption set forth by the 2010 DGA (Ref. 40). One comment cited an article that evaluated intakes of ALA, EPA, and DHA intake in children 4 to 8 years of age (Madden et al., 2009).

(Response) We disagree with the comments' interpretation of the cited articles. With respect to the cited articles, we note that the Akabas and Decklebaum article did not provide information to explain the basis for concluding that the intake of n-3 polyunsaturated fatty acids is suboptimal. The Papanikolaou article used 250 mg/day to assess adequacy of intake, however, the value was not a recommendation put forth by the 2010 DGA. The article by Madden et al. (2009) used the AI of 900 mg/day to assess adequacy of ALA, and 10 percent of this value (90 mg/day) was used to assess intake adequacy for EPA and DHA. We disagree with how Madden (Ref. 41) assessed nutrient intake for EPA and DHA because the IOM did not set an AI or EAR for EPA and DHA. The IOM only noted that EPA and DHA contribute approximately 10 percent of the total n-3 polyunsaturated fat intake (Ref. 29). There is no quantitative intake recommendation (i.e., EAR) available for assessing inadequate intake in populations. Furthermore, there are a number of nutrients for which there is suboptimal intake which was considered as part of the factors for mandatory or voluntary declaration. However, we did not rely on suboptimal intake alone for such voluntary declarations in the Nutrition Facts label.

(Comment 106) Other comments supporting the voluntary declaration of n-3 polyunsaturated fats cited published articles or gave Web site addresses to discuss the health benefits of these fatty acids.

(Response) We have reviewed the articles and Web sites and, based on our review, decline to revise the rule to provide for the voluntary declaration of n-3 polyunsaturated fats.

  • Many articles were review articles or meta-analyses that included studies that tested individuals who had a previous coronary event; therefore, the studies were evaluating the effect of the n-3 polyunsaturated fatty acids on secondary prevention of CVD (Refs. 42-47). Furthermore, some articles included observational studies on the association between the intake of polyunsaturated fatty acids and CVD risk. Scientific conclusions from such studies are not sufficient to support conclusions about the causal role of these n-3 polyunsaturated fatty acids on CHD risk in the general population.
  • One article (Ref. 48) was a one-page abstract from a meeting. The Web site address that was cited (http://www.goedomega3.com/​healthcare) is a general resource for health care professionals. Another Web site provided a list of organizations that have intake recommendations for EPA and DHA (http://www.goedomega3.com/​index.php/​files/​download/​304). None of the citations provided information that we would consider for voluntary declaration of EPA and DHA related to a relationship between these nutrients and risk of CHD.
  • One article (Ref. 49) evaluated the relationship between plasma phospholipid EPA and DHA as a biomarker of intake and mortality. Figure 2 of this article showed that the dose-response relationship between EPA and DHA intake and plasma phospholipid EPA and DHA was not linear and plateaued at around 0.5 grams/day. Therefore, plasma phospholipid EPA and DHA is not a reliable indicator of EPA and DHA consumption, and scientific conclusions could not be drawn from such as study.
  • One article (Ref. 50) was on an animal study that tested the effect of DHA on melanoma. The article did not present the totality of the evidence on DHA and risk of melanoma. Start Printed Page 33791Furthermore, we would not rely on animal data for evaluating the efficacy of DHA to reduction of risk to melanoma in humans to establish a nutrient declaration.
  • One article (Ref. 51) was a meta-analysis on EPA and DHA intake and blood pressure. There are several limitations of this meta-analysis including: (1) Not providing all of the relevant studies on EPA and DHA and blood pressure; (2) including studies that lacked an appropriate control group; and (3) including studies that conducted inappropriate statistical analyses.
  • One article (Ref. 52) was an European Food Safety Association (EFSA) scientific opinion on a labeling reference value for n-3 and n-6 polyunsaturated fatty acids in which EFSA provided a recommended intake level of 250 mg/day of EPA and DHA. The article did not discuss the scientific evidence in detail to show how this quantitative intake recommendation was determined. Furthermore, while the scientific opinion cited several references to support 250 mg/day, a number of these included observational data in which information was obtained on fish consumption. The IOM did not set a DRI for EPA or DHA because much of the observational evidence measured fish or fish oil intake as a proxy for n-3 polyunsaturated fat intake, and other components in fish may have effects that are similar to n-3 fatty acids and therefore may confound the results of the observational studies (Ref. 29).

(Comment 107) Some comments supporting the voluntary declaration of individual polyunsaturated fatty acids discussed consumer use or consumer understanding as reasons for allowing voluntary declaration.

One comment cited the 2014 IFIC Food and Health survey data to assert that the data suggests that voluntary declaration of individual polyunsaturated fatty acids is necessary for the consumer to make the purchase decisions that they intend. The comment indicated that 21 percent of consumers are looking to increase their omega-3 intake.

Some comments stated that a distinction between the different n-3 polyunsaturated fatty acids is necessary so that consumers seeking specifically EPA or DHA are not misled by voluntary declaration of polyunsaturated fat, because the levels are inflated by the presence of n-6 polyunsaturated fatty acids and ALA. The comments said that, while 85 percent of Americans are aware the n-3 polyunsaturated fatty acids reduce the risk CHD, not all n-3 polyunsaturated fatty acids are equal.

Other comments said that, while manufacturers may express the content of EPA and DHA in a product bearing a claim, doing so outside the Nutrition Facts label denies the consumer an opportunity to recognize if a meaningful amount of these fatty acids are provided relative to the other fats in the product.

(Response) We recognize that the 2014 IFIC survey concluded that 21 percent of consumers are trying to increase their consumption of omega-3 fats. We also recognize that the majority of polyunsaturated fats in foods are in the form of n-6 polyunsaturated fatty acids and that not all n-3 polyunsaturated fatty acids have the same effect on CHD risk. However, because of the lack of well-established evidence for a role of n-3 or n-6 polyunsaturated fatty acids in chronic disease risk and the lack of a quantitative intake recommendation, the declarations of n-3 and n-6 polyunsaturated fatty acids are not necessary to assist consumers to maintain healthy dietary practices. Because neither of these factors for voluntary declaration for these types of nutrients has been met, and the comments provided no scientific basis on which we could rely to support the declaration, we disagree that meaningful amounts of EPA and DHA should be voluntarily listed to provide its amount relative to the other fats in the product.

(Comment 108) Some comments supporting the voluntary declaration of n-3 polyunsaturated fatty acids stated that the recognition of only polyunsaturated fat may have unintended consequences of consumers failing to understand differences in biopotency of n-3 long-chain polyunsaturated fatty acids compared to other polyunsaturated fatty acids. According to the comments, not declaring n-3 polyunsaturated fatty acids may confuse consumers who are not aware of differences among individual polyunsaturated fatty acids with respect to their ability to reduce heart disease risk.

(Response) We disagree that potential differences in biopotency of n-3 polyunsaturated fatty acids is a basis for voluntary declaration. While there may be differences in biopotency with respect to CHD risk, there is insufficient scientific evidence and information to warrant voluntary declaration.

With respect to possible consumer confusion and unintended consequences, the comments did not describe the extent to which consumers might be confused or what the unintended consequences might be, so we do not have sufficient information to evaluate those aspects of the comments.

G. Cholesterol

1. Mandatory Declaration

Section 403(q)(1)(D) of the FD&C Act requires the declaration of the amount of cholesterol on food labels, and cholesterol content must be declared on the Nutrition Facts label in accordance with § 101.9(c)(3). In the preamble to the proposed rule (79 FR 11879 at 11899), we explained that current dietary recommendations continue to recognize the well-established relationship between consumption of cholesterol and its effect on blood cholesterol levels, which are a surrogate endpoint for CHD risk and that we were unaware of evidence that would support a change to the requirement for mandatory declaration of cholesterol on the Nutrition Facts label in § 101.9(c)(3). Consequently, we did not propose any changes to the requirement for mandatory declaration of cholesterol.

Relying on information provided in the NHLBI Lifestyle Evidence Review (Ref. 17), the 2015 DGAC Report concluded that cholesterol is not a nutrient of public health concern (Ref. 19). The 2015-2020 DGA noted that, while adequate evidence is not available for a quantitative limit for dietary cholesterol specific to the Dietary Guidelines, individuals should eat as little dietary cholesterol as possible while consuming a healthy dietary pattern that includes eggs and shellfish (Ref. 28).

Much of the published evidence, as was analyzed and reported by the IOM (Ref. 53), has demonstrated a positive association between cholesterol intake and total cholesterol in the blood. The IOM conducted a dose-response analysis of clinical trials to evaluate the relationship between dietary cholesterol and blood total cholesterol because most of the available evidence was on total cholesterol (Ref. 53). From this IOM analysis, it was concluded that, on average, an increase of 100 mg/day of dietary cholesterol is predicted to result in a 0.05 to 0.1 mmol/L increase in total serum cholesterol, of which approximately 80 percent is in the LDL fraction. The IOM cited evidence showing that the majority of the increase in serum total cholesterol with increased dietary cholesterol was due to an increase in LDL cholesterol (rather than HDL) concentration, therefore adversely affecting the cholesterol profile. The IOM analysis was the basis for the IOM concluding that cholesterol consumption should be as low as Start Printed Page 33792possible while consuming a nutritionally adequate diet.

Data from NHANES (2007-2010) show that, for all individuals over 1 year of age, 32 percent consume cholesterol in excess of the DRV of 300 mg. For men and women 19 years of age and older, 59 percent and 17 percent consume in excess of 300 mg/day of cholesterol, respectively. These findings are indicative that a significant portion of the U.S. population consumes amounts of cholesterol in excess of the DRV of 300 mg.

We do not consider there to be new information that alters the conclusions of the 2002 IOM report. Therefore, we conclude that the declaration of cholesterol on the Nutrition Facts label can assist consumers in maintaining healthy dietary practices and therefore should remain mandatory.

(Comment 109) One comment supporting mandatory declaration of cholesterol noted that the 2002 IOM report (Ref. 53) showed a strong positive relationship between cholesterol intake and increased LDL cholesterol levels. The comment cited a meta-analysis of clinical studies in which people consumed eggs or a cholesterol-free egg substitute found that LDL cholesterol rose by 2 mg/dL for every 100 mg of cholesterol consumed (Ref. 54).

(Response) While the 2002 IOM report provided its own analysis that evaluated the relationship between dietary cholesterol and cholesterol levels, it specifically evaluated total cholesterol levels, rather than LDL cholesterol levels. The IOM reported a positive association between change in cholesterol intake and change in total cholesterol levels which supports our position for mandatory listing. We recognize that the meta-analysis cited in the comment (Weggemans et al. 2001 (Ref. 54)) estimated that each additional 100 mg of dietary cholesterol would increase serum LDL cholesterol by 0.036 (1.4 mg/dL) in the studies with a background diet low in saturated fat and by 0.061 (2.4 mg/dL) in the studies with a background high in saturated fat (P = 0.03). However, this study only evaluated the effect of cholesterol from eggs rather than total dietary cholesterol. Thus, this meta-analysis, by itself, is insufficient to evaluate the effect of total cholesterol intake on blood cholesterol levels, and therefore CVD risk.

(Comment 110) Some comments opposed mandatory declaration of cholesterol because, the comments said, saturated fat has the biggest negative impact on blood cholesterol. The comments said that the EFSA concluded that, “Although there is a positive-dose-dependent relationship between the intake of dietary cholesterol with blood LDL cholesterol concentrations, the main dietary determinant of blood LDL cholesterol concentrations is saturated fat.” Other comments said there is not enough evidence on the effect of dietary cholesterol on blood cholesterol, the relationship between cholesterol consumption and blood cholesterol levels is weak and has been overestimated, and cholesterol intake does not raise blood cholesterol levels. Some comments cited several meta-analyses that concluded that there were small, modest reductions in serum cholesterol with reductions (e.g., 100 mg/day) in dietary cholesterol (Refs. 55-57).

(Response) We agree that saturated fat has a larger impact on raising blood cholesterol levels. We disagree that there is not enough evidence or that the evidence for the cholesterol-raising effects of dietary cholesterol is weak or does not exist. Numerous clinical studies have reported a cholesterol-raising effect of dietary cholesterol (Ref. 53). Using such studies, the IOM illustrated a curvilinear relationship between change in dietary cholesterol and change in serum total cholesterol levels ranging from 0 to 4,500 mg/day, with the greatest change (increase) in serum cholesterol occurring with an increased cholesterol intake of up to 50 mg/day.

The comments about EFSA support mandatory listing of both cholesterol and saturated fat because EFSA recognizes that intake of both nutrients have a positive association with blood cholesterol levels.

The final rule, therefore, does not change the pre-existing requirement for mandatory declaration of cholesterol.

(Comment 111) Some comments opposed to mandatory declaration of cholesterol noted that the NHLBI Lifestyle Evidence Review (Ref. 17) states that there is insufficient evidence to determine whether lowering dietary cholesterol reduced LDL cholesterol in the blood.

(Response) While we recognize the conclusion of the NHLBI Lifestyle Evidence Review in addition to blood LDL cholesterol being a surrogate endpoint for CHD risk, blood total cholesterol is also considered a valid predictor of CHD risk as approximately 80 percent of total cholesterol is LDL cholesterol (Ref. 29). The NHLBI Lifestyle Evidence Review did not review the findings for blood total cholesterol. Much of the evidence, as was analyzed and reported by the IOM (2002), demonstrated a positive association between cholesterol intake and total cholesterol in the blood. While the 2015 DGAC concluded that there was no appreciable relationship between the consumption of dietary cholesterol and serum cholesterol, the only information the DGAC considered was that in the NHLBI Lifestyle Evidence Review, which was specific to studies that measured LDL cholesterol.

(Comment 112) One comment opposed to mandatory declaration of cholesterol stated that clinical trials have identified individuals across all ages who have very limited or no increase in plasma cholesterol as a result of additional dietary cholesterol. The comments said that, even among hyper-responders (high response in blood cholesterol to dietary cholesterol), the response is an increase in both LDL and HDL cholesterol levels, such that the LDL/HDL ratio, a key marker of CHD risk, does not change (Refs. 58-61). Furthermore, the comments said, the amounts of cholesterol provided in clinical trials are well in excess of normal consumption.

(Response) We agree that individual's blood cholesterol levels respond differently to dietary cholesterol; this difference in individual response is true for most nutrients when they are associated with chronic disease risk. We disagree that differences in individual response is a basis for not considering the numerous studies showing that cholesterol intake raises average blood cholesterol levels. The reported findings on blood cholesterol levels from clinical trials usually represent the averages of these blood levels of the study subjects, including those who respond and those who do not respond. Assessment of the average findings from clinical studies is more relevant because the Nutrition Facts label is intended for the general U.S. population.

We also disagree that the ratio of LDL cholesterol to HDL cholesterol is a key marker of CHD risk. We do not consider HDL cholesterol, and therefore the LDL:HDL cholesterol ratio, to be a key marker (i.e., surrogate endpoint) of CHD risk. Blood HDL cholesterol has not been qualified as being a strong predictor of CHD risk. Therefore, the evidence on LDL cholesterol outweighs any evidence on the LDL:HDL cholesterol ratio with respect to evaluating the role of cholesterol in CHD risk.

(Comment 113) Some comments opposed to the mandatory declaration of cholesterol said that the 2010 DGA stated that an egg a day does not increase blood cholesterol levels, that eggs are not associated with greater risk of CVD, and that eggs are nutrient-dense. Other comments cited a number Start Printed Page 33793of studies and meta-analyses (Refs. 62-66) concluding that there was not an association between egg consumption and CVD or CHD risk.

(Response) We recognize that the 2010 DGA noted that evidence suggests that one egg (i.e., egg yolk) per day does not result in increased blood cholesterol levels, nor does it increase the risk of cardiovascular disease in healthy people. The 2010 DGAC, however, noted that, while eggs are a major source of cholesterol in the American diet, eggs and egg mixed dishes provide 25 percent of total cholesterol intake. Therefore, we do not consider studies involving only eggs to be sufficient to understand the role of total cholesterol intake on CVD risk.

As for the comments stating that eggs are nutrient-dense, the mandatory declaration of cholesterol relates to the relationship between cholesterol intake from consumption of all food sources, as part of the total daily dietary intake, and risk of CHD. Therefore, the comment does not change our conclusion about the scientific basis for the mandatory declaration of cholesterol. As we stated in the preamble to the proposed rule (79 FR 11879 at 11899), current dietary recommendations continue to recognize the well-established relationship between consumption of cholesterol and its effect on blood cholesterol levels, which are a surrogate endpoint for CHD risk. We continue to believe that information regarding cholesterol is necessary to assist consumers in maintaining healthy dietary practices.

As for the studies cited in the comments, the studies do not imply that total cholesterol intake (from all dietary sources) does not contribute to CHD risk. Consequently, rather than view eggs and cholesterol content in eggs in isolation, our Nutrition Facts label provides information to help the consumer understand the “relative significance” of eggs and their cholesterol content in the context of a “total daily diet” (see section 2(b)(1)(A) of the NLEA).

(Comment 114) Some comments opposed to mandatory declaration of cholesterol stated that dietary cholesterol has been proven to be unrelated to CVD and CVD mortality. The comments cited review articles (Refs. 67-68) to assert such studies do not support a connection between dietary cholesterol and CHD events. The review articles summarized observational studies, as well as some clinical trials, that questioned an association between cholesterol intake and risk of CHD.

(Response) We agree that some observational studies have failed to support an association between dietary cholesterol and CHD events. However, we put greater reliance on clinical trials when substantiating nutrient and disease relationships. Observational studies measure associations between foods/nutrients and diseases without demonstrating that the food or nutrient caused, in part, the change in risk of a chronic disease. The IOM (2002) (Ref. 29) noted that the lack of consistency in observational studies on dietary cholesterol may be due to many factors, including inaccuracies of dietary intake data, and to the limited ability to distinguish the effects of dietary cholesterol, independent of energy intake and other dietary variables that may be positively (e.g., saturated fat) or negatively (e.g., dietary fiber intake) associated with dietary cholesterol and heart disease risk. Individual studies, as well as an analysis of a number of these studies (Ref. 29), have demonstrated a positive association between cholesterol intake and total cholesterol, which is a risk factor of CHD. Therefore, we rely on the best available data and use clinical trial data more heavily than observational data when they are available for evaluating the role of dietary cholesterol in CHD risk. These two review articles (Refs. 67-68) also cited clinical trial data and noted that, while dietary cholesterol raises LDL cholesterol, it also raises HDL cholesterol and therefore does not change the LDL:HDL ratio. While LDL cholesterol is considered a surrogate endpoint for CHD risk, HDL is not. Therefore, the LDL:HDL ratio is not relied on for evaluating CHD risk.

(Comment 115) One comment opposed to the mandatory declaration of cholesterol stated that the evidence is questionable for an association between cholesterol intake and risk of type 2 diabetes.

(Response) Whether or not the evidence supporting cholesterol's role in type 2 diabetes risk may be questionable, the basis for mandatory declaration of cholesterol on the label is because of its role in CHD risk.

(Comment 116) One comment opposed to the mandatory declaration of cholesterol said that overconsumption of cholesterol is not a concern in the United States. The comment said that the average dietary cholesterol intake reported by CDC is 307 mg/day for men and 225 mg/day for women and that, among men, the average consumption exceeds 300 mg/day by only 2 percent while, among women, the average consumption is 25 percent below 300 mg/day (NHANES 1999-2000).

(Response) We disagree with the comment. Data from NHANES (2007-2010) show that, for all individuals over 1 year of age, 32 percent consume cholesterol in excess of 300 mg/day. For men and women 19 years of age and older, 59 percent and 17 percent consume in excess of 300 mg/day of cholesterol, respectively. These findings are indicative that a significant portion of the U.S. population consumes amounts of cholesterol in excess of the DRV of 300 mg. Therefore, we decline to make changes in response to this comment.

(Comment 117) Other comments opposed the mandatory declaration of cholesterol for several reasons. The comments said that:

  • Consumers who want to take care of their blood cholesterol levels may orient their food choices only towards foods that contain low amounts of cholesterol, regardless of their saturated fat content. A focus on saturated fat may lead to better results in terms of public health.
  • Listing cholesterol could have a negative impact on protein intake. According to the comments, because most meat and other protein rich foods also contain cholesterol, cholesterol declaration will likely dissuade consumers from eating protein-rich foods. The result will be an increase in the consumption of carbohydrate-rich foods, causing delayed satiety and contributing to increased caloric consumption.

(Response) We require declaration of cholesterol on the Nutrition Facts label pursuant to section 403(q) of the FD&C Act. Cholesterol intake is related to the risk of CHD. The comments did not provide information on the impact of the mandatory declaration of cholesterol on the consumer's intake of saturated fat, protein or carbohydrate-rich foods. We are not aware of information indicating that mandatory listing of cholesterol over the past 20 years has resulted in more focus on cholesterol, less focus on saturated fat, and reduced intake of protein-rich foods. We consider the declaration of cholesterol is necessary to assist consumers maintain healthy dietary practices and are making no changes in response to this comment.

(Comment 118) One comment said that mandatory declaration of cholesterol was not necessary because cholesterol consumption has not been a concern for a long time in treating patients with high cholesterol levels.

(Response) The Nutrition Facts label is intended for the general U.S. population, and nutrient declarations and percent DVs on the label are to help consumers make more informed choices to consume a healthy diet and there is a strong relationship between dietary cholesterol intake and total serum Start Printed Page 33794cholesterol which is a marker of CVD risk (see 79 FR 11879 at 11887 and part II.C.).

(Comment 119) One comment opposed to the mandatory declaration of cholesterol said that the U.S. government's advice to reduce cholesterol intake is unusual compared to other countries in focusing on dietary cholesterol. The comment said that dietary recommendations in other countries, such as Canada, do not have an upper limit for cholesterol intake and, instead, focus on saturated and trans fat.

(Response) There is a strong relationship between dietary cholesterol intake and total serum cholesterol which is a marker of CVD risk. Section 403(q)(2)(B) of the FD&C Act authorizes us to remove, by regulation and under certain circumstances, nutrient information. We would need a scientific basis about the relationship between total cholesterol intake and CVD risk to no longer require the mandatory declaration of cholesterol. While other countries may not require the listing of cholesterol on their food labels, section 403(q)(1)(D) of the FD&C Act requires the declaration of the amount of cholesterol on the food label. The fact that other countries lack cholesterol recommendations is, alone, an insufficient reason for us to no longer require the mandatory listing of cholesterol.

2. DRV

Our preexisting regulations, at § 101.9(c)(9), provide a DRV for cholesterol of 300 mg. In the preamble to the proposed rule (79 FR 11879 at 11899), we discussed how the IOM Labeling Committee had recommended that the DV for cholesterol (along with saturated fat and trans fat) be set at a level that is as low as possible in keeping with an achievable health-promoting diet and how, in the 2007 ANPRM, we asked for public comment on whether the current DRV for cholesterol of 300 mg should be retained. We also noted that, although the 2010 DGA recommended that cholesterol intake levels should be less than 200 mg/day for individuals at high risk of CVD, we considered the DGA recommendation of 300 mg/day for maintaining normal blood cholesterol levels as an appropriate basis for setting a DRV because it represents the maximum intake level that covers the general U.S. population 4 years of age and older (id.). Consequently, we did not propose changes to the DRV for cholesterol of 300 mg specified in § 101.9(c)(9).

(Comment 120) One comment did not support a DRV for cholesterol because cholesterol is made in the body.

(Response) We agree that cholesterol is made in the body and is therefore not essential in the diet. However, the basis for the DRV is an intake level not to exceed to reduce the risk of CHD, rather than an intake level to achieve (e.g., a DV for essential vitamins and minerals). Therefore, we decline to revise § 101.9(c)(9) insofar as a DRV for cholesterol is concerned.

H. Carbohydrate

1. Total Carbohydrate

a. Calculation of total carbohydrate. Under our preexisting regulations, at § 101.9(c)(6), total carbohydrate content is calculated by subtracting the sum of protein, total fat, moisture, and ash from the total weight of the food. This calculation method is called “carbohydrate by difference” and is described in A.L. Merrill and B.K. Watt, “Energy Value of Foods—Basis and Derivation,” in the USDA Handbook No. 74 (Ref. 69). Total carbohydrate includes starch, sugars, sugar alcohols, and dietary fiber.

We did not propose to change the method for calculating carbohydrate content.

(Comment 121) While some comments agreed with our decision to retain the calculation method for total carbohydrate content, other comments suggested that dietary fiber should not be included in the declaration of total carbohydrate. The comments stated that a significant number of consumers, especially individuals who have diabetes, want to know the amount of carbohydrates excluding dietary fiber (also known as “net carbs”) because it is helpful to know when trying to control blood glucose. One comment recommended that carbohydrate should be calculated by difference, but that moisture, fat, protein, dietary fiber, and ash should be excluded from the declaration of carbohydrate. The comment suggested that the benefits of such an approach include easy comparison of carbohydrates between food choices that do or do not contain dietary fiber, easy calculation of calories from carbohydrates with a value of 4 calories per gram, and easy calculation of calories from dietary fiber with a value of approximately 2 calories per gram. In addition, the comment stated that such an approach would encourage manufacturers to increase the dietary fiber content of their product without increasing the carbohydrate content of their product and that it would simplify consumer education and understanding. The comment further stated that nutrient databases can easily exclude dietary fiber from the calculation of carbohydrate because analytical laboratories are easily able to determine total carbohydrate by excluding protein, total fat, moisture, dietary fiber, and ash from the total weight of the food and nutrient composition tables will continue to change on a regular basis to provide new and updated data.

(Response) We decline to change the current method of calculating carbohydrate by difference. Total carbohydrate is one of the macronutrients and includes starch, sugars, sugar alcohols, and fiber. As discussed in the preamble to the proposed rule (79 FR 11879 at 11900), dietary fibers, with the exception of lignin, are considered carbohydrates and are listed as a subset of total carbohydrate on the label. Individuals who are interested in knowing the amount of carbohydrate in a serving of a product less the amount of dietary fiber may determine this information based on what is currently declared on the label. Because dietary fibers are a type of carbohydrate, to maintain consistency with how components of macronutrients are declared on the label, we decline to remove dietary fiber from the calculation of total carbohydrate, as suggested by the comments.

With respect to comments suggesting that dietary fiber should be excluded from the calculation of total carbohydrate because such a change would be helpful to diabetics when managing their blood sugar levels, we disagree that this should be a reason to remove dietary fiber from the declaration of carbohydrate. The information found in the Nutrition Facts and Supplement Facts labels is not targeted to individuals with acute or chronic diseases, such as diabetics (see part II.B.2; 79 FR 11879 at 11887).

We also disagree that removal of dietary fiber from the declaration of total carbohydrate would allow consumers to compare products that do and do not contain dietary fiber more easily. It is not clear how the comparison would be made easier by removal of dietary fiber from the total carbohydrate declaration because, if the consumer is interested in knowing how much dietary fiber is in a product, the consumer can take that information into consideration by looking for the declaration of the amount of dietary fiber on the label.

Calories from total carbohydrate may be declared voluntarily on the label. We discuss calculation of calories from total carbohydrate in greater detail later in Start Printed Page 33795this part. We agree that additional steps are necessary to calculate calories from total carbohydrates when dietary fiber is included in the declaration. However, we did not receive any comments that the calculation of total carbohydrate when dietary fiber is included in the declaration would be unnecessarily burdensome or difficult for manufacturers to perform. The calculation would not require additional laboratory analysis or expense.

We disagree that exclusion of dietary fiber from the declaration of total carbohydrate would encourage manufacturers to raise dietary fiber values independent from raising carbohydrate values. So long as the dietary fiber added to a product meets our definition of dietary fiber, the additional fiber added by the manufacturer would be reflected in the dietary fiber declaration. Consumers who are interested in consuming more dietary fiber may use the dietary fiber declaration to determine which products they purchase. Therefore, it is not clear how removing dietary fiber from the declaration of carbohydrate on the label would encourage manufacturers to add dietary fiber to their products.

With respect to the assertion that exclusion of dietary fiber from the calculation of total carbohydrate simplifies the education process and understanding for consumers, absent additional information, we are unable to judge whether such a change would lead to better understanding of the total carbohydrate and/or dietary fiber declaration on the label, and thus, whether consumers would benefit from such a change in how carbohydrate is calculated.

With respect to the comment asserting that nutrient databases can easily exclude dietary fiber from the calculation of carbohydrate, we disagree that this is a reason to exclude dietary fiber from the calculation of total carbohydrate. Although nutrient databases may be updated, we decline to exclude dietary fiber from the calculation of total carbohydrate because dietary fiber is a carbohydrate and should be declared as such to maintain consistency with how other macronutrients are determined and declared on the label.

(Comment 122) One comment encouraged us to conduct consumer studies to examine if the separation of dietary fiber from total carbohydrate on the label would benefit the overall use of the Nutrition Facts label as a tool for nutrition literacy and education.

(Response) We are always interested in understanding how consumers interpret and use information on the label. However, we are not aware of a specific need, and the comment did not specify how this information could aid consumers. Therefore, we decline to conduct these studies. We will consider conducting such studies if we have information showing that there is a need for these studies and we have the resources available to conduct such studies.

b. Classification of carbohydrates based on a chemical definition or physiological effect. The preamble to the proposed rule (79 FR 11879 at 11900 through 11901) discussed how the 2007 ANPRM invited comment on whether carbohydrates should be classified and declared in nutrition labeling based on their chemical definition (which is the current method) or on their physiological effect (e.g., attenuation of blood sugar or laxation), and whether additional types of carbohydrates (e.g., starch) should be listed separately on the Nutrition Facts label. We explained that carbohydrates include starch, sugars, sugar alcohols, and dietary fibers and that different carbohydrates have different physiological effects (id. at 11901). Within the different types of carbohydrate (i.e., starch, sugars, sugar alcohols, and dietary fibers), too, specific carbohydrates may have different physiological effects (e.g., different types of dietary fibers) making it difficult to apply a definition that is based on physiological effects across a category of carbohydrates. Furthermore, analytical methods for measuring different types of carbohydrates are based on chemical structure rather than physiological effect. Given the various components of total carbohydrate and different types of physiological effects of each, we decided not to change our provisions for the classification or declaration of carbohydrates specified in § 101.9(c)(6).

(Comment 123) One comment recommended that complex carbohydrates should be listed separately under total carbohydrate on the label. The comment stated that people do not understand that they have to subtract in order to get an idea of how much good carbohydrates are in a food product.

(Response) We decline to list complex carbohydrates separately on the label. The comment did not provide any information to explain what is considered to be a “complex” or “good carbohydrate,” and it did not explain what subtraction method can be used to calculate “good” or “complex” carbohydrates from information found on the label.

We have allowed for voluntary declaration of “other carbohydrate” on the Nutrition Facts label (§ 101.9(c)(6)(iv)). Our regulations define “other carbohydrate” as the difference between total carbohydrate and the sum of dietary fiber, sugars, and sugar alcohol, except that if sugar alcohol is not declared, “other carbohydrate” is defined as the difference between total carbohydrate and the sum of dietary fiber and sugars (§ 101.9(c)(6)(iv)). Thus, the category of “other carbohydrate” includes what are typically considered to be complex carbohydrates. As discussed in part II.H.6, the final rule does not permit the category of “other carbohydrate” to be declared on the label.

c. Separate declaration of additional individual types of carbohydrates. In the preamble to the proposed rule (79 FR 11879 at 11901), we discussed how the 2007 ANPRM asked whether additional types of carbohydrates (e.g., starch) should be listed separately on the Nutrition Facts label. We stated that the comments we received in response to the 2007 ANPRM did not support the declaration of additional types of carbohydrates (e.g., starch). Thus, the proposed rule would not require the separate declaration of additional types of individual carbohydrates, such as starch, on the Nutrition Facts label.

(Comment 124) Several comments discussed Allulose. Allulose (also known as psicose) is a monosaccharide that is derived from fructose. According to the comments, Allulose is approximately 70 percent as sweet as sucrose, but contributes less than 0.2 calories/gram to the diet. The comments said that Allulose is added to foods and beverages as a partial replacement for sugars and/or high-fructose corn syrup because of its low, near zero, calorie content and other organoleptic properties (e.g. mouthfeel, texture, etc.).

One comment said we should not include Allulose in the declaration for total carbohydrate and added sugar. In contrast, another comment said Allulose should be included in the declaration of “total carbohydrate” for nutrition labeling purposes, but should not be included in the declaration of “sugars” or “added sugars.” The comments suggested that Allulose does not have the metabolic properties of fructose or other sugars and does not contribute calories or raise blood sugar levels like other sugars do. The comments said that, upon ingestion, approximately 70 percent of Allulose is unabsorbed in the small intestine, passes into the bloodstream and is then excreted in the urine, without significant metabolism; the other 30 percent that is not absorbed Start Printed Page 33796is transported to the large intestine where it is not fermented. Allulose is then excreted without being absorbed (Refs. 70-71).

One comment stated that, when Allulose is used in food, there should be a reduction in the amount of calories declared of 4 calories/gram.

(Response) On April 10, 2015, we received a citizen petition from Tate & Lyle Ingredients Americas LLC (Docket Number FDA-2015-P-1201) requesting that Allulose be exempt from being included as a carbohydrate, sugars, or added sugar in the Nutrition Facts label on foods and beverages. The petition provided data and other information suggesting that Allulose is different from other sugars in that it is not metabolized by the human body, has negligible calories (0.2 calories per gram or less), does not contribute to increases in blood glucose or insulin levels, and, if included as carbohydrates and sugars (added sugars) on the Nutrition Facts label, would lead to consumer confusion, particularly consumers with diabetes or consumers otherwise concerned with accurately monitoring blood glucose. The petition, which was submitted after the comment period for the proposed rule had ended, provided new evidence that was not previously submitted in comments to the proposed rule. We need additional time to fully consider the information provided in the comments and the citizen petition. Therefore, the final rule does not reach a decision as to whether Allulose should be excluded from the labeling of carbohydrate, sugars and/or added sugars, and Allulose, as a monosaccharide, must be included in the declaration of each pending any future rulemaking that would otherwise exclude this substance from the declaration.

d. Mandatory declaration. Section 403(q)(1)(D) of the FD&C Act requires the declaration of total carbohydrate, and our preexisting regulations, at § 101.9(c)(6), require the declaration of the amount of total carbohydrate on the Nutrition Facts label. In the preamble to the proposed rule (79 FR 11879 at 11901), we said that carbohydrates are an essential part of the diet because they provide energy to the cells in the body, especially the brain, which is dependent on carbohydrate for proper functioning, and we tentatively concluded that the declaration of carbohydrates on the Nutrition Facts label continues to be necessary to assist consumers in maintaining healthy dietary practices.

(Comment 125) Many comments supported the continued mandatory declaration of total carbohydrates; some comments stated that the reason that total carbohydrates should continue to be declared on the label is because the information is used by individuals who have diabetes to “count carbs.”

(Response) While we agree that total carbohydrates should continue to be declared on the label, we disagree with the comments' rationale for the continued mandatory labeling of total carbohydrates. As discussed in part II.B.2, the information on the label is intended for the general healthy population rather than individuals with chronic diseases such as diabetes. In the preamble to the proposed rule (79 FR 11879 at 11901), we explained that carbohydrates are an essential part of the diet because they provide energy to the cells in the body, especially the brain, which is dependent on carbohydrate for proper functioning. Thus, the declaration of carbohydrates on the Nutrition Facts label continues to be necessary to assist consumers in maintaining healthy dietary practices, and so the final rule does not change the requirement in § 101.9(c)(7) for mandatory labeling of total carbohydrate.

e. DRV. The DRV for total carbohydrate is 300 grams (§ 101.9(c)(9)). Consistent with calculating total carbohydrate “by difference,” the proposed rule would not change the approach to calculate the percent DV for carbohydrate “by difference” as well. In addition, the proposed rule would not change the DRVs for fat or protein (see parts II.F.1.c, II.F.2.c, II.F.3.c, II.F.4.b, and II.I.3), which are used to derive the DRV for total carbohydrate. The DRV for total carbohydrate would remain at 300 grams/day. We note that the RDA for carbohydrate for men and women 19 years of age and older is 130 grams/day. Therefore, the DRV should not be viewed as an intake requirement, but as a reference amount.

(Comment 126) One comment said we should no longer require a percent DV declaration for total carbohydrate because consumption of some carbohydrates, such as naturally occurring sugars from fruit and milk, are not a public health concern.

(Response) We disagree with the comment that the percent DV declaration for total carbohydrate should no longer be required. Total carbohydrate is one of the three major macronutrients in the diet. It provides basic information about a food's nutrient profile. The percent DV declaration for total carbohydrate helps consumers put the amount of total carbohydrate in a serving of a food into the context of their total daily diet.

(Comment 127) One comment supported maintaining the current DRV for total carbohydrate of 300 grams. The comment stated that it falls within the AMDR range. In addition, the comment said, although there is an EAR and RDA for total carbohydrate, neither is appropriate or needed to serve as the basis for the DRV because relevant public health concerns are the ratio of carbohydrate to total fat and the source and type of carbohydrate in the diet.

Other comments suggested that the DRV of 300 grams is too high and that we should take a different approach to setting the DRV for total carbohydrate. One comment stated that, even though the DRV should not be viewed as an intake requirement, but rather as a reference amount, consumers often perceive it as recommended amount. The comment recommended using the population-weighted mid-point of the AMDR for adults and children of 275 grams to encourage reduction in carbohydrate consumption. The comment suggested that the current DRV of 300 grams is excessive given that the RDA for carbohydrate for adults 19 years of age and older is 130 grams/day, and that excessive carbohydrate intake is a central cause of the American obesity epidemic.

Another comment recommended reducing the DRV for total carbohydrate because the American population is sedentary and prone to metabolic syndrome. The comment also referred to the current DRV of 300 grams as a recommended intake level for a daily energy intake of 2,000 calories.

(Response) We agree with the comments recommending a reduction in the DRV for total carbohydrate, but for different reasons. We disagree with the comment that recommended decreasing the DRV for total carbohydrate because the American population is sedentary and prone to metabolic syndrome. It is unclear, based on the comment, what the comment is suggesting regarding the relationship between consumption of carbohydrates and a sedentary lifestyle or risk of metabolic syndrome. Furthermore, we disagree with the comment that the current DRV is a recommended intake level. As stated in the preamble to the proposed rule (79 FR 11879 at 11901), the DRV should not be viewed as an intake requirement, but as a reference amount.

We agree that neither the EAR or RDA values for total carbohydrate are appropriate to serve as the basis for a DRV, but we agree for different reasons than those stated in the comment. As discussed in the preamble to the proposed rule (79 FR 11879 at 11901), the EAR and RDA values set by the IOM Start Printed Page 33797do not include sugar alcohols or dietary fiber. Our calculation of total carbohydrate, for the purposes of nutrition labeling, accounts for all types of carbohydrates, including sugar alcohols and dietary fiber. Therefore, using the EAR and RDA to set a DRV for total carbohydrate would result in a reference value that is based on recommendations specifically for sugars and starches. As we stated in the preamble to the proposed rule (id.), if the midpoint of the AMDR range is used as the basis for the DRV, there would be a discrepancy in what carbohydrates are encompassed in the information provided on the label for the absolute gram amount versus the percent DV.

The current DRV for total carbohydrate of 300 grams is calculated based on 60 percent of a 2,000 calorie diet ((0.60 × 2,000 calories)/4 calories per gram of carbohydrate = 300 grams). The percentage of calories contributed by total fat, total carbohydrate, and protein add up to 100 percent on the label. The DRV for carbohydrate of 60 percent of a 2,000 calorie diet is determined by the difference of what is left over by the DRVs for total fat and protein and 100 percent. As discussed in part II.F.1, we are increasing the DRV for total fat from 30 to 35 percent. Therefore, in order for the percentages of calories contributed by total fat, total carbohydrate, and protein to add up to 100 percent, either the percentage of calories contributed by the DRV for total carbohydrate or protein needs to decrease. Some comments suggested that the DRV for total carbohydrates be decreased, and the DRV for total carbohydrate is significantly greater than the RDA for carbohydrate for adults 19 years of age and older of 130 grams/day. Reducing the DRV for protein to 5 percent of calories to account for the 5 percent increase in the DRV for fat would result in a DRV value of 25 grams of protein, which is below the RDA for protein for children and adults 9 years and older. Therefore, we conclude that the DRV for total carbohydrate should be decreased from 60 percent of calories to 55 percent of calories for a DRV of 275 grams.

f. How total carbohydrates appears on the label.

(Comment 128) Several comments discussed the placement of carbohydrates on the label itself. One comment said that consumers need to be made aware of the fact that carbohydrates are sugars chemically because, according to the comment, most consumers believe that carbohydrates and sugars are two distinct nutrients. The comment would place the word “sugars” in parentheses next to “Total Carbs” or place “Total Carbs” in parentheses next to “Total Sugars.”

(Response) We disagree that carbohydrates are chemically sugars. Although the body converts carbohydrates to sugars, the chemical structure of some carbohydrates (e.g., starches) differs from the chemical structure of sugars. Sugars are a subset of carbohydrates and are declared as such on the label. Some examples of carbohydrates include sugars, such as sucrose and lactose, and polysaccharides, such as cellulose, glycogen, and starch. Therefore, we decline to change the label's format as suggested by the comment.

(Comment 129) Some comments would move “Total Carbohydrates” to the top of the list of declared nutrients on the label. The comments cited the significant rise in diabetes and the need to make the declared amount of total carbohydrates more prominent on the label.

(Response) We disagree that the increase in diabetes in the United States is a reason to move total carbohydrates to the top of list of declared nutrients on the label. As stated in part II.B.2, the intended purpose of information on the Nutrition Facts label is to assist the general healthy population in maintaining healthy dietary practices.

(Comment 130) One comment recommended listing the amount of total carbohydrate in a product in teaspoons rather than grams. The comment said that people do not understand what gram of carbohydrate would look like and providing the information in teaspoons would be more helpful for consumers.

(Response) We decline to revise the rule as suggested by the comment. We address arguments regarding the use of household measures, rather than in gram amounts on the label, in part II.B.3.

g. Calculation of calories from carbohydrate. Our preexisting regulations, at § 101.9(c)(1)(i)(C), require that the calories from total carbohydrate be calculated by using the general factor of 4 calories/gram of carbohydrate less the amount of insoluble dietary fiber. The proposed rule also would revise the definition of dietary fiber so that only those dietary fibers that we have determined to have a physiological effect that is beneficial to human health would be considered to be “dietary fiber” on the Nutrition Facts label. For the purposes of calculating calories from carbohydrate, when it is voluntarily declared, all soluble and insoluble non-digestible carbohydrates should be excluded from the calculation, not just those known to meet the definition of dietary fiber. To ensure that all soluble and insoluble non-digestible carbohydrates are excluded from the calculation of calories from carbohydrate, we proposed to amend § 101.9(c)(1)(i)(C) to require that calories from carbohydrate be calculated using a general factor of 4 calories/g of total carbohydrate less the amount of non-digestible carbohydrates and sugar alcohols, and the caloric value of each (the non-digestible carbohydrates and sugar alcohols) is then added to the sum of the carbohydrates.

We did not receive any comments on this proposed amendment, and so we have finalized the rule without change.

2. Sugars

a. Definition. Our preexisting regulations, at § 101.9(c)(6)(ii), define sugars as a statement of the number of grams of sugars in a serving. They are the sum of all free mono and disaccharides (e.g., glucose, fructose, lactose, and sucrose). We considered whether we should continue to require mandatory declaration of sugars on the label in the proposed rule, but tentatively concluded that the declaration of sugars continues to be necessary to assist consumers in maintaining healthy dietary practices, and thus did not propose to change the current requirement for mandatory declaration of sugars (79 FR 11879 at 11902).

As discussed in the total carbohydrates section at part II.H.1, some comments and a citizen petition said we should exclude Allulose from the declaration of sugars. We discuss those comments in part II.H.1 (see comment 124).

b. Mandatory declaration. Section 403(q)(1)(D) of the FD&C Act requires the declaration of sugars, and our preexisting regulations, at § 101.9(c)(6)(ii), require the declaration of sugars on the Nutrition Facts label. We did not propose to change this requirement.

(Comment 131) Several comments supported the continued mandatory declaration of sugars. One comment stated that sugars should continue to be labeled as part of total carbohydrate because they are a type of carbohydrate. The comment added that the amount of declared sugar is possible to quantify, easy to verify using analytical methods, and is information that is easily understood by consumers, nutritionists, and health professionals.

In contrast, other comments asked us to remove sugars from the label or replace it with a declaration of added sugars or “fruit & milk sugars.” The Start Printed Page 33798comments recommending replacement of sugars with added sugars said that consumers, including individuals who have diabetes, focus on the sugars instead of the total carbohydrate amount declared on the label. One comment suggested that, when registered dietitians provide Medical Nutrition Therapy for diabetics, the sugars line is not valuable and contributes to information overload. The comment also stated that the sugars declaration makes consumers reluctant to eat foods, such as fruit and milk, which contain sugars as their source of carbohydrates.

One comment would replace sugars with fruit and milk sugars and place the new heading directly under dietary fiber; the comment said this change would clearly distinguish added sugars from naturally occurring sugars in whole fruit and from sugars from dairy ingredients and also eliminate the need for a double indentation (for declaration of added sugars) under the “Total Carbs” heading. The comment cited data from an online survey of 500 participants showing that, when “Sugars” is replaced with “Fruit & Milk Sugars” on the Nutrition Facts label, significantly more individuals were able to correctly identify the amount of naturally occurring sugars in one serving of the food (Ref. 72).

(Response) We decline to remove the declaration of sugars from the label because consumption of sugars continues to be associated with an increased risk of dental caries; thus, the information continues to be necessary to assist consumers in maintaining healthy dietary practices. We agree that sugars should continue to be labeled as part of total carbohydrate and that the amount of total sugars can be quantified using existing analytical methods.

Similarly, we disagree with the comments suggesting that the total sugars declaration should be removed from the label because consumers, especially individuals with diabetes, focus on the sugars declaration rather than the total carbohydrate declaration and may be overwhelmed by the information. The comments did not provide data or other evidence, nor are we aware of such data or evidence, to support this assertion. The total carbohydrate and sugars declaration has been on the label for over 20 years. Furthermore, as noted in part II.B.2, the information on the label is intended for the general healthy population and not for individuals with chronic diseases, such as diabetes.

Likewise, we are unable to evaluate whether the sugars declaration results in a reluctance to consume foods, such as fruit or milk, which are natural sources of sugars because the comment did not provide data or information, and we are not aware of such data or information, to support this assertion.

We disagree with the comment which would replace “Sugars” with “Fruit & Milk Sugars” on the Nutrition Facts label. Total sugars continue to be associated with risk of dental caries. Furthermore, our definition of added sugars includes (see part II.H.3.n) some fruit and milk sugars, such as sugars found in concentrated fruit juice that is not reconstituted to 100 percent fruit juice.

c. Changing “Sugars” to “Total Sugars”. In the preamble to the proposed rule (79 FR 11879 at 11902), we said that we were considering whether to use the term “Total Sugars” instead of “Sugars” on the label if we finalize a declaration of added sugars. We also said that we planned to conduct consumer research that would include, among other things, questions regarding the declaration of added sugars on the Nutrition Facts label in order to help or enhance our understanding of how consumers would comprehend and use this new information, and to inform education efforts (id.). In the supplemental proposed rule (80 FR 44303 at 44306, 44308), we discussed the results of our consumer research which showed that when an “Added Sugars” declaration was indented below a “Total Sugars” declaration on the label, participants appeared to be better able to comprehend the total amount of sugars in a food than if an “Added Sugars” declaration was indented below a “Sugars” declaration. In the supplemental proposed rule (id. at 44304), we asked for comment on whether the term “Total Sugars” should be declared on the label instead of “Sugars.”

The final rule uses the term “Total Sugars” to replace the declaration of “Sugars.” We explain our rationale and respond to comments on this change in part II.H.3.

d. DRV. Our preexisting regulations do not specify a DRV for sugars. In the preamble to the proposed rule (79 FR 11879 at 11902), we explained that consensus reports did not set dietary reference values based on which we could derive an appropriate DRV for total sugars. Therefore, we did not propose to establish a DRV for total sugars.

(Comment 132) Some comments submitted in response to the proposed rule agreed that there is insufficient information to establish a DRV for sugars. However, others comments recommended establishing a DRV and requiring mandatory declaration of a percent DV for sugars. One comment stated that such information would help consumers choose food and beverages that are low in sugar. Another comment said that, with “skyrocketing” overweight, obesity, and their co-morbidities, a percent DV for sugar would be a useful tool for informing consumers of sugar content and would help consumers make better choices. The comment said that the declaration could help consumers to visually understand approximately how much sugar they should be getting each day and how much sugar they are actually consuming. One comment suggested that a declaration of a percent DV for sugars would allow consumers to compare products more easily.

Other comments said that a DRV for sugars could be based on recommendations from the World Health Organization or the American Heart Association. One comment said that the National Institutes of Health should ask the IOM to set a suggested limit on how much sugar one should consume on a daily basis.

(Response) We decline to set a DRV for sugars or to require the declaration of a percent DV for sugars. We are not aware of data or information related to a quantitative intake recommendation for sugars that we could use as the basis for a DRV for total sugars.

With respect to the comments suggesting that the World Health Organization (WHO) or the American Heart Association (AHA) could give us a basis to establish a DRV, we acknowledge that the WHO recently released guidelines for sugars intake for adults and children (Ref. 73). The WHO recommends reducing the intake of free sugars to less than 10 percent of total energy intake in both children and adults. It also provided a conditional recommendation which suggested further reduction of the intake of free sugars to below 5 percent of total energy intake. The WHO defines “free sugars” as monosaccharides and disaccharides added to foods and beverages by the manufacturer, cook, or consumer, and sugars naturally present in honey, syrups, fruit juices and fruit juice concentrates (Ref. 73). The WHO definition of “free sugars” is not consistent with our definition of “sugars” because the WHO definition does not include all free mono and disaccharides. It excludes some naturally occurring sugars, such as lactose. Therefore, we disagree that the WHO's recommendations could be used to establish a DRV for sugars. The AHA recommended limits for intake of added sugars and not total sugars (Ref. 74). Therefore, it would not be appropriate Start Printed Page 33799to use the AHA recommendations to establish a DRV for total sugars.

As for the comment suggesting that the IOM could set a maximum intake recommendation, the IOM reviewed the evidence on this topic in the Macronutrient report (Ref. 75). As discussed in the preamble to the proposed rule (79 FR 11879 at 11902), the IOM found an association between sugar consumption and risk of dental caries, but, due to the various factors that contribute to dental caries, the IOM could not determine an intake level of sugars that is associated with increased risk of dental caries and, therefore, did not have sufficient evidence to set a UL for sugars.

e. Seasonal variation in sugars content.

(Comment 133) One comment noted that, depending on the time of year, the sugar content of fruit changes, which could impact the sugar content of products to which fruit is added. The comment questioned whether the product labels have to change throughout the year to reflect the seasonal variation in sugar content of the fruit or fruit juice in a product. The comment also questioned if the seasonal variation in the sweetness of fruit is compensated for by adjusting the amount of sugar alcohols in the product and whether a label change would be required. Another comment suggested that sugars may be added to fruits and vegetables to achieve a standard flavor profile and said that the amount of sugars added to the food may change throughout the year.

(Response) Our compliance requirements in § 101.9(g)(5) state that a food with a label declaration of calories, sugars, total fat, saturated fat, trans fat, cholesterol, or sodium shall be deemed to be misbranded under section 403(a) of the FD&C Act if the nutrient content of the composite is greater than 20 percent in excess of the value for that nutrient declared on the label. However, no regulatory action will be based on a determination of a nutrient value that falls above this level by a factor less than the variability generally recognized for the analytical method used in that food at the level involved. This approach takes into account seasonal variability as well as variability due to the analytical method used. Therefore, so long as the variability in the sugars content of the fruit does not cause the total sugars comment to be greater than 20 percent in excess of the declared value, the manufacturer of a product containing fruit would not be in violation of the regulation. The manufacturer is in the best position to determine if and when a label change is needed based on the total sugar content and the amount of sugars or sugar alcohols added to standardize the flavor profile of the food.

The declaration of the amount of sugar alcohols on the Nutrition Facts label is voluntary, so if a manufacturer uses sugar alcohols to account for the variation in the sugar content of the product, the label would only need to change if the amount of sugar alcohol is voluntarily declared on the label. However, if a food product does not typically contain a certain sugar alcohol which is added to adjust for the sugars content of fruit, that sugar alcohol would need to be declared in the ingredient list.

3. Added Sugars

In the preamble to the proposed rule, we explained that current regulations neither define the term “added sugars” nor require or permit the declaration of added sugars on the label. We considered requiring the declaration of added sugars taking into account new information. We tentatively concluded that the declaration of added sugars on the label is necessary to assist consumers to maintain healthy dietary practices, and we proposed to require the declaration of the amount of added sugars in a serving of a product (79 FR 11879 at 11905). We are finalizing the requirement for mandatory labeling of added sugars in § 101.9(c)(6)(iii), and our rationale for doing so is discussed in this section below.

We have requirements for label statements that must be made if a product contains an insignificant amount of many nutrients on the label such as carbohydrate, sugars, and dietary fiber. We also have requirements for when the nutrient content can be expressed as zero. We proposed that a statement of added sugars content would not be required for products that contain less than 1 gram of added sugars in a serving if no claims are made about sweeteners, sugars, or sugar alcohol content and we are finalizing this requirement, as proposed, in § 101.9(c)(6)(iii). We proposed to require that the phrase “Not a significant source of added sugars” be placed at the bottom of the table of nutrient values if a statement of the added sugars content is not required, and as a result, is not declared. Alternatively, we proposed to permit the use of the alternative statements “Contains less than 1 g” and “less than 1 g” to be declared. We also proposed to permit the added sugars content to be expressed as zero if a serving of food contains less than 0.5 grams of added sugars. We are finalizing the requirements for when label statements if a product contains an insignificant amount of added sugars and for when the added sugars content may be expressed as zero, as proposed, in § 101.9(c)(6).

Because our preexisting regulations do not define “added sugars,” the proposed rule would define “added sugars” as sugars that are added during the processing of foods, or are packaged as such, and include sugars (free, mono- and disaccharides), syrups, naturally occurring sugars that are isolated from a whole food and concentrated so that sugar is the primary component (e.g. fruit juice concentrates), and other caloric sweeteners. A summary of the comments regarding our proposed definition of added sugars, and our responses to those comments, can be found in part II.H.3.a.

In February 2015, the 2015 DGAC submitted the 2015 DGAC Report to the Secretaries of the U.S. Department of Health and Human Services and the U.S. Department of Agriculture. The 2015 DGAC reaffirmed recommendations in the 2010 DGA, which included recommending the reduction of added sugars intake. For the first time, the 2015 DGAC conducted a systematic review of the evidence related to dietary patterns and health outcomes, including cardiovascular disease (CVD), body weight and type 2 diabetes, cancer, congenital abnormalities, neurological and psychological illness, and bone health. The 2015 DGAC concluded that there is strong and consistent evidence that healthy dietary patterns characterized, in part, by lower intakes of sugar-sweetened foods and beverages relative to less healthy patterns, are associated with a reduced risk of CVD. We considered the evidence that the 2015 DGAC relied upon in making its determinations, and tentatively concluded, in the preamble to the supplemental proposed rule (80 FR 44303), that this information provides further support for our proposal to require the mandatory declaration of the amount of added sugars in a serving of a product on the label.

The proposed rule would not establish a DRV for added sugars. We explained, in the preamble to the proposed rule (79 FR 11879 at 11906), that the USDA Food Patterns specify the maximum amount of calories from solid fats and added sugars that can be consumed at each calorie level, while staying within calorie limits. A 2,000 calorie diet could contain approximately 260 calories from solid fats and added sugars (id.). The limit of 260 calories served as a reference to ensure the selection of a nutrient dense Start Printed Page 33800diet without excess discretionary calories from added sugars and solid fats. These limits established for calories from solid fats and added sugars in the USDA Food Patterns are based on food pattern modeling. Because the limits are not based on any biomarker of risk of disease from an independent relationship between a nutrient and chronic disease risk we stated that we did not have a quantitative intake recommendation upon which a DRV for added sugars could be derived. The statement was not intended to suggest a limitation for when we can mandate a nutrient declaration in the nutrition label, as some comments seem to suggest. The 2015 DGAC further evaluated limits for added sugars in the diet based, in part, on food pattern modeling and recommended that Americans limit their intake of added sugars to a maximum of 10 percent of total daily caloric intake. The 2015 DGAC said that its recommendation was supported by a food pattern modeling analysis conducted by the 2015 DGAC and the scientific evidence review on added sugars and chronic disease risk. In the preamble to the supplemental proposed rule (80 FR 44303 at 44308), we reconsidered our tentative conclusion that a DRV for added sugars could not be established and proposed to establish a DRV for added sugars of 10 percent of total energy intake from added sugars and to require the declaration of the percent DV for added sugars on the label.

Thus, we have scientific evidence to support a limit for added sugars that can serve as the basis for a DRV for added sugars. The limit for calories from added sugars to less than 10 percent of calories is a reference value that is appropriate for use as a DRV for added sugars. The DRV is used to calculate the percent DV, and a percent DV provides information that Americans can use to determine how the amount of added sugars in a serving of food contributes to his or her individual total daily diet. The food pattern modeling used to support a limit in the intake of added sugars to less than 10 percent of calories was used to create the USDA Food Patterns. The USDA Food Patterns provide suggested amounts of food to consume from the basic food groups, subgroups, and oils to meet recommended nutrient intakes at 12 different calorie levels. They can be used by Americans to construct a healthful dietary pattern that is consistent with current recommendations. We have concluded that evidence on dietary patterns and health outcomes showing that healthy dietary patterns characterized, in part, by lower amounts of sugar-sweetened foods and beverages are associated with a reduced risk of CVD supports a mandatory declaration of added sugars. Both the USDA Food Patterns and the dietary patterns and health outcomes analysis that were discussed in the 2015 DGAC Report provide information about healthy dietary patterns. Therefore, the DRV of 10 percent of calories and the mandatory declaration of the amount of added sugars in a serving of food are related to providing information that will assist consumers in constructing a healthy dietary pattern.

On January 7, 2016, the Secretaries of the U.S. Department of Health and Human Services and the U.S. Department of Agriculture released the 2015-2020 DGA (Ref. 28). The 2015-2020 DGA focuses on eating patterns in addition to nutrients and foods because healthy dietary patterns may be more predictive of overall health status and disease risk than individual foods or nutrients. A key recommendation of the 2015-2020 DGA is to limit calories from added sugars and saturated fats and reduce sodium intake. In order to achieve this recommendation, the 2015-2020 DGA says that Americans should consume an eating pattern that is low in added sugars. Another key recommendation of the 2015-2020 DGA is to consume less than 10 percent of calories per day from added sugars. The 2015-2020 DGA is consistent with the recommendations and the science presented in the 2015 DGAC Report. We considered the scientific evidence in the 2015 DGAC Report related to dietary patterns, as well as evidence related to limiting calories from added sugars that served as our basis for proposing a DRV for added sugars of 10 percent of total calories.

Throughout this part, we refer to the underlying scientific evidence that we have reviewed and considered which supports our basis for the mandatory declaration of the amount of added sugars in a serving of a product, the DRV, and the declaration of the percent DV for added sugars. The need for a mandatory declaration of added sugar is supported by strong and consistent evidence that dietary patterns characterized by higher consumption of vegetables, fruits, whole grains, low-fat dairy, and seafood, and lower consumption of red and processed meat, and lower intakes of refined grains, and sugar-sweetened foods and beverages relative to less healthy dietary patterns; regular consumption of nuts and legumes; moderate consumption of alcohol; lower in saturated fat, cholesterol, and sodium and richer in fiber, potassium, and unsaturated fats are associated with a decreased risk of CVD. The scientific evidence from the 2010 DGA supporting that consumption of excess calories from added sugars can lead to a less nutrient-dense diet, current consumption data showing that Americans are consuming too many calories from added sugars, and the strong evidence that greater intake of sugar-sweetened beverages is associated with increased adiposity in children also support mandatory declaration of added sugars.

We reviewed and considered the evidence that the 2015 DGAC relied upon for its conclusion that healthy dietary patterns characterized, in part, by lower intakes of sugar-sweetened foods and beverages are associated with a decreased risk of CVD relative to less healthy dietary patterns, which included an existing review from the NEL Dietary Patterns Systematic Review Project as well as the NHLBI Lifestyle Evidence Review and the associated Lifestyle Management Report (Refs. 17-18). We have concluded that it is appropriate to rely on evidence that considered not only added sugars but also sugar-sweetened foods and beverages to support the mandatory declaration of added sugars on the label because sugars are added to sugar-sweetened foods and beverages and provide extra calories in those foods. When those foods are consumed in excess, they are not consistent with healthy dietary patterns. We also note that the strong and consistent association with CVD risk was seen when healthy dietary patterns were compared with less healthy dietary patterns. As discussed in the 2015 DGAC Report, dietary patterns of the American public are suboptimal and are causally related to poor individual and population health and higher chronic disease rates. On average, the U.S. diet is low in vegetables, fruits, and whole grains, and high in sodium, calories, saturated fat, refined grains, and added sugars. Underconsumption of the essential nutrients vitamin D, calcium, potassium, and fiber are public health concerns for the majority of the U.S. population, and iron intake is of concern among adolescents and premenopausal females (Ref. 19).

There were many statements made in the 2010 DGA related to consuming a dietary pattern that is nutrient dense. Those statements included the concepts that added sugars displace other nutrient-dense foods in the diet and that as the amount of solid fats and added sugars increase in the diet, it becomes more difficult to also eat foods with sufficient dietary fiber and essential vitamins and minerals, and still stay Start Printed Page 33801within calorie limits. The 2010 DGA relied on food pattern modeling done for the USDA Food Patterns to support statements in the 2010 DGA related to nutrient density. We considered these statements and evidence from the IOM macronutrient report (Ref. 75) showing that decreased intake of some micronutrients occurs when individuals consume in excess of 25 percent of calories from added sugars.

The 2015 DGAC said that current intake of added sugars remains high at 268 calories, or 13.4 percent of total calories per day among the total population ages 1 year and older (Ref. 19). Intake data from the What We Eat In America, 2007-2010 (Ref. 76), the dietary component of NHANES was used by the 2015 DGAC to answer questions related to current intake of added sugars. We also considered how this current intake data relates to recommendations from the 2015 DGAC when concluding that Americans are consuming too many calories from added sugars.

We considered the scientific evidence in the 2010 DGAC Report supporting the conclusion related to consumption of sugar-sweetened beverages and adiposity in children when determining that the evidence supports the mandatory declaration of added sugars. The 2010 DGAC conducted a full NEL search to evaluate the association between sugar-sweetened beverages and adiposity in children. Results of this review, covering 2004-2009 were supplemented by the findings of prospective studies included in an earlier evidence review conducted by the American Dietetic Association (ADA) (1982-2004). Although we have concluded that this body of evidence provides further support for a mandatory declaration of added sugars on the label, it is limited to children. Therefore, we refer to the general population, which includes both children and adults, when we discuss the evidence on dietary patterns characterized, in part, by lower intakes of sugar-sweetened foods and beverages and decreased risk of CVD because the healthy dietary pattern components described in the literature for adults are reaffirmed with the USDA Food Patterns, which aim to meet nutrient needs across the lifespan, including children 2 years of age and older.

a. Declaration

(i) Comments on the Rationale for Requiring Mandatory Declaration of Added Sugars

In the preamble to the proposed rule, we identified the factors that we considered when determining which non-statutory (those that are not explicitly required by the FD&C Act) nutrients should be declared on a mandatory and voluntary basis on the label (79 FR 11879 at 11889). We considered whether a quantitative intake recommendation existed and whether there is public health significance when determining which nutrients should be declared on the label. We considered mandatory declaration to be appropriate when there is public health significance and a quantitative intake recommendation that can be used for setting a DV for a nutrient (79 FR 11879 at 11890). For nutrients that are not essential vitamins and minerals, we considered voluntary declaration to be appropriate when the nutrient either has a quantitative intake recommendation but does not have public health significance, or does not have a quantitative intake recommendation available for setting a DRV but has public health significance (79 FR 11879 at 11891). We also considered the scientific evidence from the 2010 DGA related to the intake of added sugars in the diet and the role of such information in assisting consumers to maintain healthy dietary practices. We noted that our review for added sugars was not based on the factors we have traditionally considered for mandatory declaration that are related to an independent relationship between the particular nutrient and a risk of chronic disease, health-related condition, or health-related physiological endpoint.

(Comment 134) Many comments addressed our rationale for requiring the declaration of added sugars on the label in relation to the risk of chronic disease. One comment recognized that our rationale for proposing to require the mandatory declaration of added sugars is atypical and is not based on a traditional nutrient health-outcome linkage. In contrast, other comments suggested that we not require the declaration of added sugars on the label because they do not meet the factors outlined in our criteria for mandatory labeling. One comment also objected to voluntary declaration of added sugars because, according to the comment, it does not meet either of our proposed factors. Another comment said that we have not shown that a public health significance exists for added sugars labeling through well-established scientific evidence. The comments also noted that our rationale for requiring the declaration of added sugars differs from our rationale for declaring other nutrients on the label.

(Response) Our determination under section 403(a)(2)(A) of the FD&C Act of whether a nutrient is necessary to assist consumers in maintaining healthy dietary practices is not limited to the factors we have used when assessing nutrients for which there is an independent relationship between the nutrient and risk of disease, a health-related condition, or a physiological endpoint (see our response to comment 45). Our rationale for requiring the mandatory declaration of added sugars is different from that of nutrients for which such an independent relationship exists. Rather than basing a declaration of added sugars on an association with risk of chronic disease, a health-related condition, or a physiological endpoint, for the purposes of the general population (see part II.H.3), we are considering a declaration of added sugars in the context of how it can assist consumers in maintaining healthy dietary practices by providing information to help them limit consumption of added sugars, and to consume a healthy dietary pattern. Instead of considering an association with risk of chronic disease, for the purposes of the general population, our review for the proposed rule was based on information which supported the need for further information about added sugars on the label to assist consumers to maintain healthy dietary practices and the need for consumers to be able to readily observe and comprehend the information and to understand its relative significance in the context of a total daily diet (79 FR 11879 at 11891). We relied on multi-faceted evidence showing that added sugars consumption in the United States is a public health concern. We cited information from the 2010 DGA indicating that a high intake of calories from excess solid fats and added sugars can decrease the intake of nutrient-dense foods in the diet and can increase the overall caloric intake, which could lead to weight management issues (79 FR 11879 at 11904). We considered evidence related to excess consumption of calories from added sugars. For many years, added sugars have contributed a significant amount of calories to the American diet. The 2010 DGA cited intake data showing that Americans consumed approximately 16 percent of calories from added sugars (Ref. 77). More recent data shows that consumption of added sugars has decreased to approximately 13.4 percent of calories in recent years; however, the intake still remains high and exceeds 10 percent of total calorie intake. In the preamble to the proposed rule, we also Start Printed Page 33802cited to the strong evidence reviewed by the 2010 DGAC that shows that children who consume sugar-sweetened beverages have increased adiposity (increased body fat) (79 FR 11879 at 11904).

The evidence we considered when determining that the amount of added sugars in a serving of a product must be declared on the label includes the scientific evidence from the 2010 DGA and the 2015 DGAC Report related to limiting calories from added sugars. The 2015-2020 DGA also includes this scientific evidence.

A recommendation to limit the intake of added sugars has been long-standing in the various editions of the DGA, although the terminology and specificity of the guidance has evolved over time. In fact, we considered requiring the declaration of added sugars on the label in the January 6, 1993 final rule for the Mandatory Status of Nutrition Labeling and Nutrient Content Revision, Format for Nutrition Label (58 FR 2079 at 2098). The comments that we received to a 1990 proposed rule recommended mandating the declaration of added sugars only, rather than total sugars, because dietary recommendations urged the use of sugar in moderation, while at the same time recommending increased consumption of fruits, which are sources of naturally occurring sugars. Though the terminology “added sugars” was not introduced into the DGA until 2005, when Americans were advised to “choose and prepare foods and beverages with little added sugars or caloric sweeteners, such as amounts suggested by the USDA Food Guide and the DASH eating plan,” the DGA has included key recommendations advising Americans to limit their intake of “sugar” since the first report in 1980 (Refs. 30, 78-83). Even in the 1980 DGA, Americans were advised to “avoid excessive sugars” by using less of all sugars, including white sugar, brown sugar, raw sugar, honey, and syrups. Consumers were also advised to reduce their consumption of foods containing these sugars such as candy, soft drinks, ice cream, cakes, and cookies. All of the ingredients that consumers were advised to limit in their diet in the 1980 DGA would meet our current definition of an added sugars, and the foods that Americans were advised to limit are some of the largest contributors to added sugars intake today.

Over the past century the health profile of Americans has changed. Deficiencies of essential nutrients have dramatically decreased, and chronic diseases that are related to poor quality dietary patterns and physical inactivity, such as obesity, CVD, type 2 diabetes, and diet-related cancers, have become much more prevalent in the population (Ref. 19). Dietary patterns and their food and nutrient characteristics were at the core of the conceptual model that guided the 2015 DGAC's work and resulted in scientific evidence supporting the recommendations from both the 2015 DGAC Report and the 2015-2020 DGA related to healthy dietary patterns (Refs. 19, 28). For the first time, the 2015 DGAC completed a systematic review to examine the relationship between dietary patterns and health outcomes. The data related to dietary patterns and health outcomes, which was reviewed by the 2015 DGAC, focused on specific health outcomes including: CVD, measures of body weight or obesity, type 2 diabetes, cancer, congenital anomalies, neurological and psychological illnesses, and bone health. The 2015 DGAC concluded that the overall body of evidence examined by the 2015 DGAC identifies that a healthy dietary pattern is higher in vegetables, fruits, whole grains, low- or non-fat dairy, seafood, legumes, and nuts; and moderate in alcohol (Ref. 19). The 2015 DGAC also concluded that dietary patterns characterized, in part, by lower consumption of sugar-sweetened foods and beverages relative to less healthy dietary patterns were strongly and consistently associated with a reduced risk of CVD (Ref. 19). Evidence for dietary patterns and the other health outcomes that were included in the analysis was moderate or limited. The new evidence from the systematic review examining the relationship between dietary patterns and health outcomes provide further support for a mandatory declaration of added sugars because consumers need to know how much added sugars are in their foods in order for them to construct an overall healthy dietary pattern and to limit consumption of added sugars. The scientific evidence also was included in the 2015-2020 DGA. Furthermore, consumers need to know how much added sugars are in a serving of a product so that they can avoid consuming excess calories from added sugars, at the expense of calories from other components as part of a healthy dietary pattern within calorie limits, such as fruits, vegetables, fat-free and low-fat dairy, grains, protein foods, and oils.

We disagree with the comment that added sugars should not be required on the label because we have not shown that a public health significance exists for added sugars labeling through well-established scientific evidence. The comment is considering the guidance we have given related to determining public health significance in our proposed factors for mandatory and voluntary labeling, which are focused on nutrients for which there is a relationship with a risk of a chronic disease, a health-related condition, or a physiological endpoint. However, we are using a different paradigm for the labeling of added sugars for the general population (see part II.H.3) than has been used traditionally. We have established that there is public health significance of added sugars through other evidence and recommendations related to a healthy dietary pattern low in sugar-sweetened foods and beverages that is associated with reduced risk of CVD, through consumption data showing that Americans are consuming too many calories from added sugars, through evidence showing that it is difficult to meet nutrient needs within calorie limits if one consumes too many added sugars, and through evidence showing that increased intake of sugar-sweetened beverages is associated with greater adiposity in children.

We disagree with the comments that suggested that added sugars should not be required to be declared on the label because they do not meet the factors we consider for mandatory labeling of nutrients for which there is an independent relationship between the nutrient and a risk of chronic disease, a health-related condition, or a physiological endpoint. We must evaluate the current nutrition science and determine whether a nutrient will assist consumers in maintaining healthy dietary practices. We are not bound by certain factors when determining if any and all nutrients should be declared on the label now or in the future (see part II.C.3).

The final rule, therefore, at § 101.9(c)(6)(iii), requires the mandatory declaration of added sugars.

(Comment 135) Many comments said we should not require the declaration of added sugars on the label because they do not have a unique role in causing weight gain or increasing the risk of chronic disease when compared to other macronutrients. Many comments cited the 2010 DGA's conclusion that added sugars are no more likely to contribute to weight gain or obesity than any other source of calories (Ref. 30). Some comments also cited the conclusion in the IOM DRI report for macronutrients that there is no clear and consistent association between increased intake of added sugars and BMI (Ref. 75). The comments noted that studies have shown that with respect to weight loss, reducing total caloric intake is more Start Printed Page 33803important than the source of calories. The comments asserted that excess energy in any form will promote body fat accumulation.

(Response) We agree that excess calories from any source can contribute to weight gain. However, Americans are consuming too many calories from added sugars, and those calories typically are not accompanied by other beneficial nutrients. The comments are considering the evidence that we have used to support a declaration of added sugars against our proposed factors for mandatory and voluntary declaration of non-statutory nutrients for which there is an independent relationship between the nutrient and a risk of chronic disease, a health-related condition, or a physiological endpoint. Rather than considering a direct relationship between consumption of added sugars and risk of a chronic disease, health-related condition, or physiological endpoint, for the purposes of the general population (see part II.H.3), we have focused on how added sugars found in sugar-sweetened foods and beverages contribute to a dietary pattern, and how the contribution of added sugars to the total diet impacts health. The evidence points to the need for consumers to know how much added sugars are in a serving of a product to assist them in achieving a healthy dietary pattern and maintaining healthy dietary practices.

(ii) Evidence on Added Sugars and Risk of Chronic Disease

(Comment 136) Many comments suggested that, if we are using the traditional relationship between a nutrient and risk of chronic disease, a health-related condition, or a physiological endpoint when determining if added sugars should be declared on the label, there is specific scientific evidence on added sugars and risk of disease that we should consider. Many comments suggested that a declaration of added sugars is necessary because consumption of added sugars is associated with an increased risk of chronic disease or markers for chronic disease. Some comments provided evidence that increased consumption of sugar-sweetened beverages, which are the primary source of added sugars in the American diet, is associated with increased body weight, an increase in body mass index (BMI), adiposity (body fat), increased blood pressure leading to increased incidence of hypertension, and in increased risk of metabolic syndrome, type 2 diabetes, and gout. Other comments provided evidence that high intakes of fructose-containing sugars can raise levels of triglycerides, visceral fat, liver fat, blood glucose, insulin, and LDL cholesterol. The comments suggested that the findings indicate that diets high in fructose increase markers or risk factors for heart disease, diabetes, non-alcoholic fatty liver disease, and metabolic syndrome. The comments noted that randomized, controlled clinical trials to test the hypothesis that added sugars increase disease risk would violate ethical standards, and therefore, are impossible to conduct.

In contrast, many comments argued that there is no association between consumption of added sugars and risk of chronic disease, and therefore, there is a lack of a scientific basis to require the mandatory declaration of added sugars on the label. One comment stated that evidence available since the 2010 DGA is conflicting and inconclusive. In reference to the evidence showing that all sugars contribute to dental caries, one comment suggested that there are many factors that can contribute to dental caries, including oral bacteria, salivary flow, oral hygiene behavior, and susceptibility of the tooth. The comment stated that it was not aware of any evidence showing that added sugars presents a unique risk for causing dental caries.

Some comments criticized studies on added sugars and risk of disease. The comments suggested that scientific consensus groups have found difficulty in determining any relationship between added sugars intake and health outcomes due to a variety of complex reasons. The reasons cited included lack of harmonization within the scientific literature of the definition and inclusion of ingredients considered to be added sugars, difficulty comparing studies where the primary health outcomes measured are not consistent across studies, systematic reviews draw conclusions across multiple studies with various inclusion criteria and designs, excess energy intake may not be controlled for in the analysis, much of the information about added sugar content of products is proprietary, and methodological problems with observational studies which have suggested detrimental associations of added sugars intake with health outcomes. The comments also noted that sugar-sweetened beverages are often inappropriately used as a proxy or surrogate for total added sugars intake.

(Response) Added sugar in the diet is an area that is of particular interest in the nutrition community. A substantial amount of research has been conducted on the association between consumption of sugar-sweetened beverages and risk of chronic disease, as noted in the comments. The 2010 DGAC concluded that an increased intake of sugar-sweetened beverages is associated with greater adiposity in children. Since 2010, additional evidence on sugar-sweetened beverages and their association with risk of disease has emerged. The 2015 DGAC concluded that there is strong and consistent evidence that intake of added sugars from foods and/or beverages is associated with excess body weight in children and adults (Ref. 19). We note that the majority of the evidence that the 2015 DGAC relied on for this conclusion was from studies on the relationship between intake of sugar-sweetened beverages and body weight. Although the evidence on sugar-sweetened beverages and body weight/adiposity is strong and consistent, sugar-sweetened beverages represent only 39 percent of food sources of added sugars. As noted in the comments, sugar-sweetened beverages may not be an appropriate proxy or surrogate for total added sugars intake.

Research on the health effects of total added sugars continues to emerge. One difficulty that researchers face when designing studies on added sugars from all food sources is that there are many ingredients containing added sugars by different names, and no single definition of added sugars has been adopted by the scientific community. In § 101.9(c)(6)(iii) of the final rule, we are establishing a regulatory definition of added sugars. We expect that, by requiring the declaration of the amount of added sugars in a serving of a product on the label, and by establishing a definition of added sugars, additional research on the health effects of added sugars from food and beverages will be conducted in the future that will further clarify the direct relationship of added sugars with risk of chronic diseases, health-related conditions, and physiological endpoints.

Although we are not basing a mandatory declaration of added sugars for the general population on an independent relationship between added sugars and risk of chronic disease, we are, instead, basing an added sugars declaration on the need to provide consumers with information to construct a healthy dietary pattern that is low in added sugars. We intend to monitor the evidence in this area and will consider how any new evidence may impact our regulations in the future.

(Comment 137) In the preamble to the proposed rule (79 FR 11879 at 11904), we suggested that the disclosure of saturated fat and trans fat on the label not only provides information to consumers for managing their risk of Start Printed Page 33804CVD, but the declaration of these nutrients also could provide a marker for foods that contain solid fats (fats which are solid at room temperature and contain a mixture of saturated and unsaturated fatty acids but tend to contain a high percentage of saturated and trans fats). We suggested that there is not currently information on the label that could serve as a marker for added sugars.

Some comments took issue with comparisons made between fats and sugars in the proposed rule. The comments noted that there are significant health differences between fats in general and solid fats. The comments asserted that those differences provide a defensible basis for delineating the types of fats on the label, and there are no similar functional health differences between sugars and added sugars. Therefore, the comments said we do not have a basis for requiring a separate declaration for added sugars on the label.

(Response) Our basis for requiring the declaration of added sugars for the general population (see part II.H.3) is not related to an independent relationship between added sugars and a risk of chronic disease, but rather on the contribution of added sugars to an overall dietary pattern. Added sugars consumption among the general U.S. population exceeds what can reasonably be consumed within calorie limits and can have a negative impact on health. The declaration of added sugars will assist consumers in maintaining healthy dietary practices. In the preamble to the proposed rule, we were not making a comparison between the level of evidence related to an independent relationship between the intake of fats and sugars and chronic disease risk. Instead, we were describing whether information on the label for certain fats and sugars would allow the consumer to use the label to reduce their consumption of calories from solid fats and added sugars.

(Comment 138) Some comments likened the public interest in added sugars to that in total fat in previous years and suggested that we consider the unintended consequences associated with a single nutrient-type approach.

(Response) We disagree with the comment's suggestion that we are taking a single nutrient-type approach to the labeling of added sugars. We are considering how added sugars interact with other components in the diet and make it difficult for individuals to meet nutrient needs within calorie limits and to construct a healthful dietary pattern. As noted in the 2015 DGAC Report, added sugars are not intended to be reduced in isolation; in fact, sodium and saturated fats are also recommended to be reduced in order to achieve a healthy dietary pattern that is balanced, as appropriate, in calories (Ref. 19). These considerations have led us to conclude that consumers need information on the amount of added sugars in a serving of a product as well as a percent DV declaration to help them maintain healthy practices and determine how a serving of a product fits into the context of their total daily diet. Furthermore, the declaration of added sugars will be included with other nutrient declarations on the label. This is one of many pieces of nutrition information that consumers should use when making food choices.

(iii) New Evidence Presented in the 2015 DGAC Report

After publication of the 2010 DGA, the USDA NEL completed a systematic review project examining the relationships between dietary patterns and several health outcomes, including CVD, body weight, type 2 diabetes, and dental caries. In addition, the DGAC reviewed the NHLBI Lifestyle Evidence Review and the Lifestyle Management Report. Based on the information provided in the NEL report, the 2015 DGAC made conclusions about the association of healthy dietary patterns and the risk of the named health outcomes. In particular, the 2015 DGAC concluded that strong and consistent evidence demonstrates that dietary patterns characterized by higher consumption of vegetables, fruits, whole grains, low-fat dairy, and seafood, and lower consumption of red and processed meat, and lower intakes of refined grains, and sugar-sweetened foods and beverages relative to less healthy patterns; regular consumption of nuts and legumes; moderate consumption of alcohol; lower in saturated fat, cholesterol, and sodium, and richer in fiber, potassium, and unsaturated fats is associated with a decreased risk of CVD. We reviewed and considered the evidence that the DGAC relied on for making this conclusion, and determined that it supports our basis for requiring the mandatory declaration of the gram amount of added sugars on the label. We requested comment on this new information in the supplemental proposed rule.

(Comment 139) Some comments supporting our inclusion of the new information on dietary patterns and CVD risk in our rationale for the declaration of added sugars said that the U.S. population should be encouraged and guided to consume dietary patterns that are rich in vegetables, fruit, whole grains, seafood, legumes, and nuts; moderate in low- and non-fat dairy products and alcohol (among adults); lower in red and processed meat; and low in sugar-sweetened foods and beverages and refined grains. One comment noted that the dietary patterns that are now recommended for CVD reduction by the American Heart Association and the American College of Cardiology and the new part 2 recommendations of the National Lipid Association all refer to a dietary pattern low in sweets and sugar-sweetened beverages.

Many comments supported the 2015 DGAC's recommendation that Americans reduce their intake of added sugars and said that the recommendation is consistent with the American Cancer Society's nutrition and physical activity guidelines, the recent guidelines from the World Health Organization on added sugars intake, and recent lifestyle guidelines from the American Heart Association and the American College of Cardiology.

(Response) We have reviewed and considered the data and information underlying the 2015 DGAC's recommendations and have concluded that the declaration of added sugars is necessary to assist consumers in maintaining healthy dietary practices. The declaration would enable consumers to limit added sugars as part of a healthy dietary pattern.

(Comment 140) Although we did not propose to rely on the analysis conducted by the 2015 DGAC (Ref. 84) on the relationship between the intake of added sugars and CVD, body weight/obesity, type 2 diabetes, and dental caries, some comments addressed the analysis and whether it supports a mandatory declaration of added sugars.

Some comments said that it is appropriate for us to rely on information from the 2015 DGAC Report as well as the robust science upon which that report is based regarding the health risks of added sugars. The comments said that the DGAC comprehensively reviewed the current scientific literature and concluded that added sugars increase the risk of multiple health outcomes, including excess body weight, type 2 diabetes, CVD and dental caries. According to the comments, the evidence, which was graded either as “strong” or “moderate” by the DGAC, further supports the mandatory declaration of added sugars on the label and supports the addition of a percent DV declaration on the label. The comments cited additional scientific evidence supporting an association between consumption of added sugars and/or sugar-sweetened beverages and Start Printed Page 33805the risk of the health outcomes named in the 2015 DGAC Report or endpoints such as serum triglycerides, LDL cholesterol, and blood pressure.

Other comments suggested that the existing evidence related to consumption of added sugars and the risk of various chronic diseases and health-related conditions is limited and does not demonstrate a clear, causative relationship or direct contribution of added sugars to obesity, heart disease, or other diseases or conditions.

Some comments questioned why we are relying on evidence related to dietary patterns and risk of disease to support a mandatory declaration of added sugars when a review was done by the DGAC that specifically looked at consumption of added sugars and risk of CVD and the DGAC concluded that the evidence was moderate rather than strong. The comments noted that the evidence reviewed by the DGAC in chapter 6 (clinical trials and observational studies on sources of added sugars and CVD risk) provides a more direct and specific evaluation on added sugars and CVD risk than from data on dietary patterns and CVD risk.

(Response) As discussed in part II.H.3.a, we are requiring an added sugars declaration so that consumers can limit calories from added sugars as part of a healthy dietary pattern lower in sugar-sweetened foods and beverages which is associated with a reduced risk of chronic disease and can meet nutrient needs within calorie limits. We do not need to limit our review of the science to the moderate evidence related to an independent relationship between added sugars and risk of chronic disease; instead, we can include in our review the strong and consistent association between the healthy dietary pattern with lower amounts of sugar-sweetened foods and beverages, compared to less healthy dietary patterns, and reduced risk of CVD (see added sugars introduction). Although the 2015 DGAC concluded that strong and consistent evidence shows that intake of added sugars from food and/or sugar-sweetened beverages are associated with excess body weight in children and adults, the evidence reviewed by the 2015 DGAC was primarily on sugar-sweetened beverages, which only represent 39 percent of food sources of added sugars. The consumption of added sugars and their impact on health continues to be an area of great interest to the scientific community and to consumers. We intend to monitor future research that may impact the labeling of added sugars.

(Comment 141) Some comments suggested that our review is inconsistent and selective. The comments said that the particular dietary pattern related to CVD was singled out from the DGAC Report of dietary patterns and other chronic diseases (e.g. cancer, type 2 diabetes) in the supplemental proposed rule because it was the only chronic disease for which the evidence was considered to be strong and, as such, we consider strong evidence to be necessary for requiring added sugars on nutrients in the proposed rule.

(Response) We have strong and consistent evidence that dietary patterns associated with a decreased risk of CVD are characterized by higher consumption of fruits, vegetables, whole grains, low-fat dairy, and seafood, and lower consumption of red and processed meats, and lower intakes of refined grains and sugar-sweetened foods and beverages relative to less healthy dietary patterns. The dietary pattern approach focuses on components of the diet and how they contribute to an overall healthy dietary pattern that is associated with a decreased risk of disease. Although this is the first time that the 2015 DGAC has conducted a systematic review of the evidence related to dietary patterns and health outcomes, analysis of diet quality using scoring indices is an accepted scientific method that has been used for years to assess diet quality. The evidence that the 2015 DGAC considered related to dietary patterns and CVD risk adds to information that we provided in the proposed rule to support an added sugars declaration and is not the only evidence that we are relying on to support the declaration. Evidence related to an independent association between consumption of added sugars and risk of chronic disease continues to emerge. Although science related to the independent relationship between total added sugars and risk of chronic disease is not conclusive at this point, it does not mean that we cannot and should not rely on the evidence that we currently have related to healthy dietary patterns characterized, in part, by a reduced intake of sugar-sweetened foods and beverages and reduced risk of CVD, which is strong and consistent.

(Comment 142) Some comments cited reasons why the type of analysis which was conducted to examine the relationship between healthy dietary patterns and health outcomes cannot be used to make conclusions regarding single nutrients, food components, or foods. The comments noted that we have stated that we do not accept this type of extrapolation from an association of a complex mixture with disease risk to determine the association between a single component of the mixture to disease risk in our Guidance on Evidenced Based Review (Ref. 85). The comments said that the extrapolation does not establish a public health endpoint to justify mandatory declaration added sugars. Some comments also said that the evidence on dietary patterns is not nutrient specific and a dietary pattern is defined as the quantities, proportions, variety or combinations of different foods and beverages in diets, and the frequency with which they are habitually consumed.

(Response) This type of analysis that was conducted to examine the relationship between healthy dietary patterns and health outcomes is appropriate to answer questions about how dietary patterns, as a whole, impact disease risk. This type of analysis also takes into account relationships between components of a healthy dietary intake, which cannot be determined when looking at specific associations with a nutrient and risk of disease. Other analyses are more appropriate for answering questions related to a direct cause and effect relationship between a nutrient and the risk of a disease or health-related endpoint.

The evidence considered by the 2015 DGAC related to dietary patterns and CVD risk provides us with information about the components of a healthy dietary pattern and how those components, when taken in combination, make up a dietary pattern that is associated with the reduced risk of CVD. As noted by the 2015 DGAC, it is often not possible to separate the effects of individual nutrients and foods. The 2015 DGAC Report says that the components of the eating pattern can have interactive and potentially cumulative effects on health (Ref. 19). The 2015-2020 DGA also says that people do not eat food groups and nutrients in isolation but rather in combination, and the totality of the diet forms an overall eating pattern.

The dietary pattern analysis as well as information from the USDA food patterns showing how much added sugars individuals can reasonably consume in their diet while meeting nutrient needs, and consumption data showing that consumption of added sugars among Americans remains high supports limiting consumption of added sugars. In order for consumers to limit consumption of added sugars in the diet, it is necessary for information to be provided on the label that allows consumers to determine how much added sugars is in a serving of food, so Start Printed Page 33806they can determine whether and how that food fits into their total daily diet. Therefore, information about what constitutes a healthy dietary pattern that is associated with a decreased risk of disease supports a label declaration of added sugars even though conclusions about a nutrient-specific association with risk of disease cannot be drawn from this type of evidence.

(Comment 143) Some comments noted that the 2010 DGA said that individuals can achieve a healthy diet in multiple ways and preferably with a wide variety of foods and beverages. Optimal nutrition can be attained by many different dietary patterns, and a single dietary pattern approach or prescription is unnecessary. The comments said that dietary patterns other than those evaluated in Chapter 2 of the 2015 DGAC Report might not have necessarily shown that reduced added sugars intake was associated with increased risk of CVD.

(Response) While individuals can follow a number of different healthful dietary patterns, the NEL review on dietary patterns and CVD risk did not specifically look at studies where individuals were placed on a particular diet or were instructed to follow a specific diet. The 2015 DGAC did consider evidence from DASH trials where participants were placed on the DASH diet. With the exception of the DASH trials, the analyses included free-living individuals who were following many dietary patterns. Certain scoring indices were then applied to intake data to look at how closely the diets of study participants matched certain types of healthy dietary patterns. Scores were then given based on adherence to the dietary pattern of interest. The dietary quality analyses included individuals that did not closely adhere to a particular dietary pattern of interest. In looking at all reports, which included an analysis of adherence to multiple types of healthy dietary patterns, the 2015 DGAC concluded that closer adherence to the healthy dietary patterns of interest, which tended to include less sugar-sweetened foods and beverages, resulted in a decreased risk of CVD. Therefore, the analysis included individuals who followed a wide variety of dietary patterns, some of which were determined to be more strongly associated with chronic disease risk than others. Although it is possible that some dietary patterns including substantial amounts of sugar-sweetened foods and beverages are associated with a decreased risk of CVD, research conducted across cohorts using multiple dietary pattern indices show that there is a high degree of correlation (highest quintile of scores) across scoring indices, and that higher diet quality is significantly and consistently associated with a reduced risk of death due to all causes, CVD, and cancer compared to the lowest quintile of scores (Ref. 86). Therefore, it is very unlikely that the majority of the population can consume a high quality diet that incorporates the proper amounts from food groups to meet nutrient needs as well as a significant amount of added sugars and still stay within calorie limits. The research suggests that there is a high level of consistency between different scoring indices in what is considered to be a healthy diet. Furthermore, as shown in the USDA Food Patterns for three patterns of health eating (a Healthy U.S.-Style Eating Pattern, a Healthy Mediterranean-Style Eating Pattern, and a Healthy Vegetarian Eating Pattern (Ref. 19)), in order to eat a dietary pattern that includes the amounts of other healthy dietary components, it is not possible to consume large amounts of empty calories.

b. The 2015 DGAC Analysis of Dietary Patterns and Health Outcomes

(Comment 144) In the analysis of dietary patterns and health outcomes, dietary quality indices were used to evaluate adherence to certain dietary patterns. An individual's score is derived by comparing and quantifying their adherence to the criterion food and/or nutrient component of the index and then summed over all components (Ref. 19). A population's average mean and individual component scores can be similarly determined. Some examples of the dietary quality scores used for the analysis include: The Health Eating Index (HEI)-2005 and 2010, the Alternate HEI (AHEI) and updated AHEI-2010, the Recommended Food Score (RFS), the Mediterranean Diet Score (MDS), and the Alternate Mediterranean Diet Score (aMed).

Some comments took issue with the various scoring algorithms used to evaluate adherence to certain dietary patterns as well as with the studies included in the analysis. One criticism of the scoring algorithms was that the majority of dietary pattern index studies cited by the 2015 DGAC did not include an added sugars criterion. The comments noted that the MDS, the aMed, the AHEI, and the RFS do not include a “sweets or sugar products” component. The comments said the HEI-2005 included sugar in a combined category of solid fats, alcoholic beverages and added sugars, the AHEI-2010 included sugar-sweetened beverages and fruit juice, and the Dietary Approaches to Stop Hypertension adherence index included soda, sugar sweetened beverages or a broader “sweets” category depending on the scoring method used. The comments said that none of these indices specifically address added sugars independently. One comment stated that not one of the Mediterranean dietary pattern studies cited by the DGAC had a sugars or added sugars criterion.

Other comments singled out studies from the 55 that were included in the NEL review based on whether they included a measure of added sugars in the study. The comments suggested that studies with scoring indices that did not include a measure of added sugars should be excluded from our analysis. Some comments suggested that, when only the studies in which dietary pattern scoring indices were used that included a measure of added sugars are considered, the evidence related to CVD risk is not strong and consistent. The comments noted that the 2015 DGAC Report says that “certain scores also included added sugars or sugar-sweetened beverages as negative components.”

(Response) While a number of index studies did not include a direct measure of added sugars or sugar-sweetened foods and/or beverages, the scoring systems in the study were measuring adherence to an overall dietary pattern, such as the Mediterranean diet, that is typically low in added sugars. Furthermore, research shows that there is consistency in scoring as well as association with health outcomes across dietary quality indices, including two that do not typically include a sugar-sweetened food and beverages component (i.e. aHEI and AMED) (Ref. 86).

The Dietary Patterns Methods Project conducted standardized and parallel analyses of the prospective association of select dietary patterns characterized by dietary quality indices and mortality outcomes in three large cohort studies conducted in the United States. The investigators selected four commonly used dietary quality indices including the HEI-2010, the AHEI-2010, the aMED, and the DASH (Ref. 86). The comments noted that the AHEI and aMED dietary quality indices do not have a specific measure of added sugars. Liese et al. found that the indices were highly correlated, which means that individuals with the highest scores of adherence were likely to be scored similarly across all of the four dietary quality indices. They also found that higher diet quality (highest quintile of scores) was associated with lower all-Start Printed Page 33807cause, CVD, and cancer mortality when compared to lower diet quality (lowest quintile of scores) across the diet quality indices. Similar findings have been seen across dietary quality scoring indices and large prospective cohort studies (Refs. 87-89). These results suggest that dietary quality scoring indices consistently determine diet quality, regardless of whether they include a component for sugar-sweetened foods and/or beverages. The research also suggests that, because the diet quality indices are so comparable in what they measure as a high quality diet, it is very likely that the diets of individuals with higher diet quality scores will have a lower intake of sugar-sweetened foods and/or beverages. Furthermore, it is very unlikely that participants with high diet quality scores across the various scoring indices would be able to consume enough of the other components of a healthy dietary pattern to receive a high score if they were consuming large amounts of sugar-sweetened foods and beverages.

We also note that the dietary pattern scoring indices were modified by study investigators, so it is necessary to review each study to determine whether the diet quality index used in a particular study included a component that measured added sugars. Table 4-B-I-1 from the 2015 DGAC Report shows a comparison of the dietary components across some of the major diet scoring indices (Ref. 19). The comment noting that the MDS, the aMed, the AHEI, and the RFS do not include a “sweets or sugar products” component was likely referring to the information in Table 4-B-I-1. However, to determine if the scoring index used in a particular index study included a measure of sugars-sweetened foods or beverages, it is necessary to go to the study report because investigators did include measures of types of sugar-sweetened foods and/or beverages in most of the studies included in the analysis. For example, Trichopoulou et al. evaluated adherence to a Mediterranean diet by using the MDS, but included sweets as a component of the scoring algorithm.

(Comment 145) One comment noted that, if a company wanted to make a voluntary claim that there is a strong association between diets low in added sugars and a decreased risk of CVD, we would not consider the underlying evidence that the DGAC relied upon as sufficient to support such a claim, yet we are relying on this same level of evidence to require that companies include a mandatory claim on their labels that is potentially false and misleading for certain foods which undergo chemical processes that reduce the amount of sugar in a product.

(Response) To the extent that the comments are suggesting that it is not appropriate for us to rely on evidence related to dietary patterns and health outcomes to support a mandatory declaration of added sugars, we disagree. The scientific evidence related to dietary patterns and health outcomes that was presented in the 2015 DGAC Report, and more specifically the evidence related to a healthy dietary pattern that is associated with a decreased risk of CVD relative to less healthy dietary patterns does show that there are certain characteristics of a healthy dietary pattern that consumers need when selecting foods to eat and when determining how much of those foods they should eat. The information that we are relying upon related to healthy dietary patterns characterized, in part, by lower amounts of sugar-sweetened foods and beverages and CVD risk is directly related to the need for consumers to have information on the label, which they do not currently have in the case of added sugars, so that they can construct a healthy dietary pattern that is associated with a decreased risk of disease and maintain healthy dietary practices.

In response to the comment's suggestion that an added sugars declaration is potentially false and misleading for certain foods which undergo chemical processes that reduce the amount of sugar in a product, we have concluded that, generally, manufacturers of foods that undergo non-enzymatic browning and fermentation are able to determine a reasonable approximation of the amount of added sugars in a serving of their finished product (see part II.H.3.k). Therefore, added sugars declarations on foods that undergo non-enzymatic browning and fermentation are not potentially false and misleading.

(Comment 146) Some comments noted that the studies that did include an assessment of sugar sweetened foods and/or beverages did not include an assessment of everything that we would consider to be added sugars. One comment said that some of the studies only assessed sugars‐sweetened beverage intake, and some considered fruit juices to be sugar-sweetened beverages. The studies included no assessment of intake of sugar-containing foods.

Other comments noted that the scoring algorithms used to evaluate dietary pattern adherence may differ and may affect the results of studies examining specific health outcomes. The comments said that this factor may hamper cross-study comparisons and limit reproducibility.

(Response) Some studies included only sugar-sweetened beverages, while others included “sugar” or “sweets.” The scoring algorithms also did vary from study to study. However, research shows that different dietary quality indices are very comparable in what they consider to be a high quality versus a low-quality diet (Ref. 86). The different dietary quality indices also are very consistent in their association with health outcomes (Ref. 86). Although the studies included different types of added sugars as components of their analysis, when taken as a whole, the data generally shows that healthy dietary patterns that are associated with a decreased risk of CVD relative to less healthy dietary patterns are characterized, in part, by lower amounts of sugar-sweetened foods and beverages. Additionally, it would be extremely difficult for individuals consuming large amounts of empty calories from sugar-sweetened foods and beverages to be able to consume enough of the other components of a healthy dietary pattern to be able to receive a high diet quality score.

We also recognize that the scoring algorithms used in the studies included in the analysis differ from study to study. However, despite having different ways to evaluate many different types of healthy diets, a strong and consistent pattern emerged from the evidence. We view the variety of scoring algorithms to be a strength of the review because, despite the differences in scoring algorithms, there was consistency in what constituted a diet that would receive a high dietary quality score and there was consistency in the association between higher dietary quality scores and CVD risk versus lower diet quality scores.

(Comment 147) Some comments noted that none of the definitions of added sugars used in the studies included in the analysis of dietary patterns and CVD risk are consistent with our proposed definition since it was not released until 2014 and the studies were conducted prior to that date. One comment suggested that many more sources of sugar are included in our proposed definition than in the studies cited in the 2015 DGAC Report.

(Response) The studies included in the analysis on dietary patterns and CVD risk assessed the intake of foods that are part of an eating pattern rather than intake of specific nutrients. Therefore, we would not expect, nor would it be necessary for, our proposed definition of added sugars to be consistent with how sugar-sweetened Start Printed Page 33808foods and beverages were defined for the purposes of this type of analysis. Furthermore, we would not anticipate that researchers would have used our proposed definition as a guide when determining what foods include added sugars because, at the time the studies were conducted, we had not finalized the rule.

(Comment 148) One comment cited several epidemiological studies which evaluated the DASH dietary scoring pattern and CVD outcomes. The comment said that, in one study included in the 2015 DGAC analysis (Ref. 90), the range of sweetened beverage intake across the DASH score quintile was narrow (0.3 servings per day in the lowest quintile and 0.2 servings per day in the highest quintile). The comment noted that the authors of the study concluded that a diet that resembles the DASH eating plan was significantly associated with lower risk of CHD and stroke, but they made no mention of reduced consumption of sweetened beverages as part of the diet. The comment also referred to a subsequent study in the Women's Health Study cohort which evaluated the relationship between adherence to a DASH dietary pattern score and risk of CVD. In this study, an apparently strong association of adherence to the DASH diet with incidence of CVD was attenuated upon control for confounding variables. The comment noted that, Folsom et al. found that adherence to the DASH diet, where sweets were evaluated as a broad category, did not have an independent long-term association with hypertension or CVD mortality after adjustment for confounding variables in a cohort of women (Ref. 91).

(Response) Although study authors may not have mentioned sweetened beverages as part of the DASH eating plan, the DASH diet is typically lower in the category of food called “sweets.” Therefore, it is appropriate to rely on studies where a DASH scoring index was used because the scoring algorithm is based on a diet that is low in sweets.

We considered all 55 articles reviewed by the NEL, which summarized evidence from 52 prospective cohort studies and 7 randomized-controlled trials (RCTs), and the NHLBI Lifestyle Evidence Review and the associated Lifestyle Management Report, which included primarily RCTs. Although some studies where a DASH dietary quality scoring index was used did not show an association with CVD risk, and some DASH dietary quality scoring indices did not include a direct measure of sugar-sweetened foods and beverages, as noted in the comments, when taken together with other studies included in the analysis, the body of evidence supports the conclusion that there is strong and consistent evidence dietary patterns characterized by higher consumption of vegetables, fruits, whole grains, low-fat dairy, and seafood, and lower consumption of red and processed meat, and lower intakes of refined grains, and sugar-sweetened foods and beverages relative to less healthy patterns; regular consumption of nuts and legumes; moderate consumption of alcohol; lower in saturated fat, cholesterol and sodium and richer in fiber, potassium, and unsaturated fats are associated with decreased CVD risk.

(Comment 149) Some comments cited a number of studies where an association with higher adherence scores and CVD risk, CHD risk, or ischemic stroke was found, but when an analysis of sugar sweetened foods and/or beverages was done in the same data set, an association with the outcome of interest was not found. The comments referred to component analyses that were conducted as part of some of the studies included in the analysis of the evidence related to dietary patterns and CVD risk. In these component analyses, the data for intake of certain dietary components, such as fruits and vegetables, were looked at more closely to see if they were associated with the outcome of interest (CVD risk) when looked at in isolation. The comments said that “added sugars” intake was not a factor in the observed differences in CVD risk in some of the studies where component analyses were performed. Additionally, the comments said that sugars are only one of many dietary factors included in the scoring indexes, and interplay between multiple factors in the dietary patterns cannot be excluded. Some comments said that the analysis is limited because not all of the studies included in the NEL review included a component analysis. The comments pointed to the statement in the 2015 DGAC Report which says “although a large number of the studies assessed food group components and their association with CVD outcomes, many did not, and more precise determination of the benefits and risks of individual components (e.g., alcohol) would be helpful for policy recommendations. One comment noted that the 2015 DGAC Report fails to mention all of the individual components that were tested that had no effect on CVD (e.g., added sugars). Another comment noted that throughout the studies, the impact of dairy on the association between a dietary pattern and a health outcome was inconsistent, which shows that the methodology used is imprecise.

(Response) For the first time, the 2015 DGAC conducted a systematic review of the evidence related to dietary patterns and health outcomes. The analysis was included because people do not eat nutrients or foods in isolation. Rather than focusing on specific nutrients, the 2015 DGAC and the 2015-2020 DGA focused on eating patterns and shifts that Americans need to make in order to move towards a healthier diet that is associated with a decreased risk of chronic disease. The 2015-2020 DGA said that the key recommendations for healthy eating patterns should be applied in their entirety, given the interconnected relationship that each dietary component can have with others (Ref. 28). The 2015 DGAC Report said, and we agree, that it is often not possible to separate the effects of individual nutrients and foods and that the totality of the diet-the combinations and quantities in which foods and nutrients are consumed may have synergistic and cumulative effects on health and disease (Ref. 19). It is with this information in mind that we reviewed the evidence related to dietary patterns and health outcomes presented in the 2015 DGAC Report.

We disagree with the comments stating that studies that included a component analysis for added sugars and CVD risk that did not show a favorable association cannot be used to support an added sugars declaration. Investigators use component analyses as an exploratory measure to see if the result seen is mainly due to one component or another. How these component analyses are conducted varies from study to study because there is not consensus within the scientific community yet on what methods should be used for component analyses. For example, in some studies, the effects of individual components of the diet are looked at separately without controlling for the effects of other components of the diet, while in other studies investigators control for other variables in the diet when looking at the effect of an individual dietary component. Because the methodology related to dietary pattern component analyses is still evolving and there is a great deal of variability between studies in how the component analyses are performed, we believe that it would not be appropriate to conclude that sugar-sweetened beverages have no responsibility for the overall relationship that is seen with CVD risk just because a component analysis indicates that there is no Start Printed Page 33809independent effect of sugar-sweetened beverage consumption on CVD risk in the data set. Instead, we have considered the evidence related to the totality of the dietary pattern. By considering the makeup of the entire healthy dietary pattern, we can take into account connections that foods and dietary components may have with one another.

As noted in the 2015 DGAC Report, the analysis of dietary patterns and health outcomes captures the relationship between the overall diet and its constituent foods, beverages and nutrients in relationship to outcomes of interest and quality, thereby overcoming the collinearity (closely aligned relationship) among single foods and nutrients (Ref. 19). Therefore, we agree with the comment that said that interplay between multiple factors in dietary patterns cannot be excluded. The dietary pattern should be looked at as a whole rather than a sum of its parts because there is interplay between the multiple factors. When certain nutrients or foods are looked at individually without taking into account the relationships that the nutrient or food component has with other pieces of the dietary pattern, the effects of those relationships are lost. Information that would allow consumers to understand how a food fits into their overall dietary pattern is therefore important to be declared on the label.

In addition, investigators often analyze data using different methods, depending on the research question, and not all articles include a report of all of the study findings. Therefore, it is possible that sugar-sweetened foods and beverages could have been measured or that a component analysis was conducted for sugar-sweetened foods and/or beverages, but the findings were not reported in a particular published article.

(Comment 150) Some comments said that the evidence related to healthy dietary patterns characterized, in part, by lower intakes of sugar-sweetened foods and beverages is not strong and questioned whether we relied on the DGAC's analysis and conclusion rather than doing our own analysis of the studies.

(Response) We reviewed and considered the evidence that was considered by the 2015 DGAC when making their conclusions in Chapter 2 of the 2015 DGAC Report. We concluded based on that review and consideration of the evidence that strong and consistent evidence demonstrates that healthy dietary patterns are characterized by higher consumption of vegetables, fruits, whole grains, low-fat dairy, and seafood, and lower consumption of red and processed meat, and lower intakes of refined grains, and sugar-sweetened foods and beverages.

The comments that said that the data does not support a strong and consistent relationship with CVD risk were looking at the data in more limited way than we have. They focused their review on a specific nutrient-disease relationship whereas we considered the whole of the dietary pattern. Some comments included conclusions from their own review of the evidence. In those comments, studies were excluded based on whether the dietary quality index used in each study included a measure of added sugars, whether the studies were conducted in the United States, whether a component analysis for a measure of added sugars was conducted, and whether that analysis showed an association with CVD risk. As previously discussed in our responses to comments 147 and 148, we do not agree that it is appropriate to discount studies from the body of evidence considered based on these factors and have looked at the data and the dietary pattern as a whole rather than a sum of its parts.

(Comment 151) One comment questioned the scientific validity of using hypothesis-based dietary pattern scores for determining health outcomes. The comment said that the use of adherence scores, cluster or factor analysis as a science-based measure for predicting health outcomes is flawed and not an accepted scientific methodology. The comment provided an example where an analysis based on dietary pattern scores showed that individuals with higher adherence to the dietary pattern of interest compared to individuals with lower adherence actually had an almost 300 percent increased chance of dying from CVD, which is an incorrect conclusion (Ref. 92).

(Response) The use of this type of scientifically valid approach to looking at complex relationships between dietary patterns at health endpoints is being used by well-established scientific bodies. In fact, some of the dietary quality scoring indices were developed by Federal Agencies (e.g., the HEI). Although this is the first time that the DGAC has conducted a systematic review of the evidence related to dietary patterns and health outcomes, the use of diet quality indexes to look at an association between dietary patterns and health outcomes is not new. For example, the USDA's Center for Nutrition Policy and Promotion created the HEI in 1995. Dietary pattern analysis is becoming more widely accepted in the scientific community because there has been a shift in recent years from focusing on nutrients and their association with disease risk to a dietary pattern approach that considers the fact that individuals do not eat nutrients or foods in isolation. The 2015 DGAC based their conclusions and recommendations on the results of this type of analysis to look at dietary patterns as a whole rather than specific nutrient and disease relationships, and the DGAC uses scientifically valid approaches that are widely accepted in the scientific community.

Other comments suggested that the use of dietary pattern indices to assess the relationship between dietary patterns and health outcomes is flawed for specific reasons. We address those issues in our responses to comment 143.

(Comment 152) Several comments cited a number of limitations of how the dietary intake data was collected in studies included in the analysis. The comments cited a number of criticisms of the use of Food Frequency Questionnaires (FFQs), which were used in the observational studies included in the analysis to assess adherence to scoring patterns. The comments suggested that added sugars are poorly measured by FFQs. Another limitation of FFQs mentioned in comments is that they are based on self-report and may introduce levels of report bias that can attenuate diet-health relationships. The comments stated that the extent to which data from FFQs are valid measures of dietary patterns is not well established. One comment said that FFQs are not designed to assess absolute intakes of foods, and when used only at baseline, the assumption is that intake does not change over several years, when health outcome is measured. The comment also said that FFQs provide little information on how the food was prepared.

Other comments said that the dietary patterns do not assess the frequency of meal and snack consumption, specific combinations of foods consumed together, and aspects of food purchase and preparation, all of which may influence an overall dietary pattern.

One comment said that fats and oils are spread across food groups, making them difficult to account for.

(Response) FFQs are a relatively efficient and cost effective way to collect information about usual intakes in a large population study, which is why they are often used to assess intake in large-scale cohort studies. FFQs are often used in studies because they are inexpensive, can be self-administered, take less time for participants to Start Printed Page 33810complete compared to other dietary assessment methods, and can be read by machines rather than being hand-entered and analyzed (Ref. 93). Although there may be more precise ways to assess dietary intake patterns, other intake methods, such as multiple 24-hour recalls are often less practical for use in large population studies. There are many advantages to having a larger sample size when evaluating habitual intake, which can provide robust results (Ref. 94). FFQs have been shown to be reasonably accurate in reporting food use (Ref. 93). FFQs also provide a better estimate of usual intakes that can be used to assess dietary patterns because they assess intake over a longer period of time than other dietary assessment techniques, such as 24-hour recalls, diet histories, and dietary records. FFQs are also almost always used in retrospective reports about diet (Ref. 95). We accept the use of data from FFQs in observational studies used to support an association between a substance and a disease or health-related condition for health claims (Ref. 85).

We recognize that there are some limitations to the use of FFQs, and that one limitation is that in many of the studies FFQs were only administered at baseline. FFQs do not assess the frequency of meal and snack consumption, specific food combinations, and food preparation. Dietary pattern analysis considers combinations of foods and how they relate to health outcomes, but questions about the frequency of meal and snack consumption, specific food combinations, and food preparation would require a more specific analysis. Like other types of dietary assessment, this type of analysis can only be used to draw general conclusions about what components are included in a dietary pattern that is associated with risk of disease and the relative contribution (higher or lower) of that dietary component to the overall dietary pattern. Further analyses would be required to answer questions related to frequency of meal and snack consumption, specific food combinations that may associated with disease risk, and specific aspects of food preparation.

Fats and oils are spread across food groups, which make them more difficult to account for; however, we are most interested in sugar-sweetened food and beverages and how they fit into the dietary pattern. Sugar-sweetened foods and beverages can be isolated from the diet by the dietary assessment tools used in the studies included in the dietary pattern and health outcomes analysis.

(Comment 153) One comment said that the observational data used in these studies, and the way that they are analyzed, make the findings highly subjected to residual confounding (error that can occur when either the categories of the variables related to the outcome of interest (e.g. CVD risk), called confounding variables, are too broad or when some confounding variables are not accounted for). The comment said that even with adjustment for confounders, residual confounding cannot be eliminated from observational studies. More specifically, higher/better dietary index scores were associated with a number of factors, such as higher education, increased physical activity, non‐smoker, multivitamin use, hormone therapy (women), and being married vs. single.

(Response) Residual confounding is a general limitation of all observational studies and is not specific to just this type of analysis. The comment did not provide specifics about individual studies for which confounders were not appropriately adjusted. Therefore, the comment does not change our consideration of the data.

(Comment 154) Some comments said that the patterns may be population-specific and therefore, are not generalizable. The comments also noted that some studies were not conducted in the United States and suggested that these studies cannot be used to draw conclusions about the general U.S. population.

(Response) We agree that patterns may be population-specific; however, care was taken to include studies conducted in populations that were very similar to the U.S. population (e.g. countries in the E.U.) and that data was collected in populations that would be generalizable to the U.S. population (Ref. 19).

(Comment 155) Some comments said that the NEL project based its conclusions only on those studies where score adherence was associated with decreased CVD risk, leaving all of the studies showing no effect out of the analysis.

(Response) We disagree with the comment that the NEL and the 2015 DGAC based their conclusions only on studies where score adherence was associated with decreased CVD risk. As stated in the 2015 DGAC Report, after the exclusion criteria were applied, a total of 55 studies met the inclusion criteria for the systematic review. The NEL found that the majority of the 55 studies that assessed CVD incidence or mortality reported an inverse association between increased adherence to a healthy dietary pattern and decreased risk of CVD. The NEL considered the results of all 55 studies rather just a subset where score adherence was associated with a decreased CVD risk.

c. Authority for Labeling

(i) Statutory Authority

(Comment 156) Many comments addressed our authority to require the mandatory declaration of added sugars on the label. We discuss our authority under the FD&C Act and our recordkeeping authority in parts II.C.3 and C.4.

Many other comments questioned our authority to require added sugars on the label because the purpose of the Nutrition Facts label is to help consumers reduce their risk of diet-related disease and added sugars are not associated with risk of disease. One comment noted that each of the nutrients currently on the label relate to a disease or serious health condition. Other comments said that we lack the authority to require the disclosure of added sugars because our rationale for requiring labeling, which is related to encouraging consumers to eat a more nutrient-dense diet or dietary planning, is by our own admission not related to a disease or health-related condition, such as obesity.

One comment suggested that, because there is no scientifically supported quantitative intake recommendation for added sugars upon which a DRV can be derived and because no authoritative scientific body has found a public health need to set an Upper Level (UL) for added sugars intake, we have not sufficiently shown that there is a public health need to monitor added sugars intake through labeling for consumers to maintain healthy dietary practices. The comment further stated that our admission in the proposed rule that we cannot establish a DV for added sugars further indicates that added sugars is not the type of nutrition disclosure that Congress intended for the Agency to require on the label.

(Response) As discussed in part II.C.3, under section 403(q)(2)(A) of the FD&C Act, the Secretary of the Department of Health and Human Services may require, by regulation, that information related to additional nutrients be included in the label or labeling of food, if the Secretary determines that providing information regarding the nutritional value of such food will assist consumers in maintaining healthy dietary practices. The FD&C Act requires that nutrition information on Start Printed Page 33811the label be conveyed to the public in a manner which enables the public to readily observe and comprehend such information and to understand its relative significance in the context of the total daily diet. There is evidence that excess consumption of added sugars is a public health concern. Healthy dietary patterns characterized, in part, by lower intakes of foods and beverages which contain added sugars are associated with a decreased risk of CVD. Current scientific evidence supports limiting consumption of added sugars. Without a label declaration of added sugars, consumers are unable to determine how much added sugars a serving of a particular food would contribute to their diet and how to fit that food within an overall healthy eating pattern. We have concluded that the declaration of added sugars will assist consumers in maintaining healthy dietary practices, as required under the FD&C Act.

We disagree with the comment that asserted that added sugars is not the type of nutrient disclosure Congress intended for FDA to require because there is no scientifically supported quantitative intake recommendation for added sugars upon which a DRV can be derived. We are not limited to establishing a quantitative intake recommendation to circumstances in which there is a biomarker of risk of disease. Instead, we are relying on other evidence to support a mandatory declaration of added sugars for the general population which is not based on an independent relationship with a chronic disease, health-related condition, or physiological endpoint, but is based, instead, on constructing an overall healthy eating pattern that is low in added sugars.

As discussed in part II.H.3.o.(i), new evidence has become available since publication of the proposed rule in March 2014 related to limiting intake of added sugars to less than 10 percent of calories (Ref. 19). We have considered the underlying scientific evidence in the 2015 DGAC Report and have determined that the evidence supports establishing a DRV of 10 percent of total calories. The DRV for added sugars of 10 percent of calories is based on the amount of added sugars that can be reasonably accommodated within a healthy dietary pattern. As discussed in part II.H.3, the evidence that we are relying on for a mandatory declaration of added sugars for the general population and for the DRV is based on information related to healthy dietary patterns. Therefore, the comment's concern about a lack of a quantitative intake recommendation for added sugars has been addressed.

(Comment 157) Some comments said that a stronger case can be made for including whole grains or stearic acid on the label.

(Response) The FD&C Act gives us the authority to add and remove nutrients from the label based on whether we determine the nutrients are necessary to assist consumers in maintaining healthy dietary practices. We did not consider whether it would be appropriate to consider whole grains as a nutrient, nor propose a declaration of whole grains on the nutrition label, in the context of this rulemaking. Whole grains are made up of a variety of different grains (e.g. amaranth, barley, buckwheat, whole kernel corn, millet, oats, quinoa, rice, rye, sorghum, teff, triticale, wheat, and wild rice), and we would need to give further consideration about whether it would be appropriate to consider whole grains as a nutrient for purposes of nutrition labeling.

In the preamble to the proposed rule (79 FR 11879 at 11894), we considered whether the labeling of stearic acid should be mandatory or voluntary on the label and concluded that the evidence for a role of stearic acid in human health (e.g. changes in plasma LDL cholesterol levels) is not well-established. We tentatively concluded that the individual declaration of stearic acid is not necessary to assist consumers in maintaining healthy dietary practices. We also have declined to exclude stearic acid from the calculation of an individual food's percent DV for saturated fat elsewhere in this document (see part II.F.2) because current dietary recommendations for saturated fat, such as those of the DGA, do not differentiate among the individual saturated fatty acids in providing the recommended intake levels. In addition, the DGA recommendation to consume less than 10 percent of calories from saturated fatty acids makes no specific exclusion of stearic acid, and instead, relates to the intake of total saturated fatty acids. Therefore, we have determined that stearic acid should not be specifically listed on the label and should not be excluded from the calculation of an individual food's percent DV for saturated fat.

(Comment 158) One comment discussed how the declaration of the amount of added sugars in a product “could compromise legitimate trade secrets” based on the declared amount being made public.

(Response) To the extent that the comment argued that the declaration of the amount of added sugars could compromise legitimate trade secrets, we disagree. We are not requiring the public disclosure of formulations or recipes. We are requiring, for all products, the declaration of specific nutrients that have been determined to assist consumers to maintain healthy dietary practices (cf. Philip Morris, Inc. v. Reilly, 312 F.3d 24 (1st Cir. 2002)). It would be unreasonable for manufacturers to expect that the nutrients on the Nutrition Facts label would never change based on updated scientific evidence and the need to provide information that will assist consumers to maintain healthy dietary practices (see, e.g., Ruckelhaus v. Monsanto Co., 467 U.S. 986 (1984), Corn Products Refinery Co. v. Eddy, 249 U.S. 427 (1919)).

(ii) Material Fact

(Comment 159) Some comments said that a declaration of added sugars is not a material fact because a declaration does not appear to be necessary for consumers to make healthy dietary choices and that, absent a declaration of added sugars, the label is not false or misleading to consumers.

(Response) Under section 403(a)(1) of the FD&C Act, a food is misbranded if its labeling is false or misleading in any particular. Section 201(n) of the FD&C Act further defines misleading labeling. In determining whether labeling is false or misleading, we take into account representations made or suggested in the labeling and the extent to which the labeling fails to reveal facts material in light of the representations or with respect to consequences that may result from the use of the food to which the labeling relates under the conditions of use prescribed in the labeling, or under such conditions of use as are customary or usual (id.). In the context of nutrition labeling, we have considered the declaration of meaningful sources of calories or nutrients to be a material fact (see 55 FR 29487 at 29491 through 29492, July 19, 1990 and 68 FR 41434 at 41438, July 11, 2003). Nutritive value cannot be determined without a declaration. Thus, the final rule will ensure that information that relates to the added sugars content of a serving of food, which is fundamental to people's food choices, is available on the food label. The added sugars declaration will provide consumers with information that is material with respect to the consequences of consuming a particular food (see 55 FR 29487 at 29491 through 29492).

We have determined that there is adequate evidence to demonstrate that consumption of added sugars is a public health concern because evidence shows that heathy dietary patterns associated Start Printed Page 33812with a decreased risk of chronic disease are lower in sugar-sweetened foods and beverages that have been sweetened with added sugars, consumption of too much added sugars can impact the nutrient density of the diet, and consumption of sugar-sweetened foods and beverages is associated with increased adiposity in children. Furthermore, the scientific evidence supports that consumers limit their intake of added sugars to less than 10 percent of total calories. Without information on the amount of added sugars in a serving of a food, consumers would not have the information they need to construct a healthy dietary pattern that contains less than 10 percent of calories from added sugars. Therefore, we have concluded that this evidence is adequate to compel a label declaration of added sugars on the Nutrition and Supplement Facts labels.

(iii) Regulations Must Bear a Reasonable Relationship to the Requirements and Purposes of the Statute

(A) Consumers Are Eating Too Many Added Sugars

(Comment 160) Some comments suggested that an added sugars declaration would be beneficial for consumers because evidence shows that Americans are consuming too many added sugars. The comments cited survey data showing that from 2003 to 2006, added sugars, on average, provided about 14 percent of total calories in the American diet, and 25 percent or more of total calories for over 36 million Americans. The comments argued that Americans consume an average of 152 pounds of sugar per year, the average 6- to 11-year-old American boy consumes 22 teaspoons of added sugars per day, and the average girl of that age consumes 18 teaspoons of added sugars per day. The comments also cited data on the average per-capita loss-adjusted food availability data from 2012 showing that, on average, Americans consumed between 18 to 23 teaspoons (about 300 to 390 calories worth) of added sugars per day.

Other comments suggested that the declaration of added sugars is not necessary because current evidence shows that consumption of added sugars is declining in the United States. One comment noted that the American public is already reducing its consumption of sugar-sweetened beverages, especially carbonated sweetened beverages, and it is doing so without having an added sugars declaration on the Nutrition Facts label. Some comments provided evidence that the decrease in the intake of added sugars has been pronounced with an approximate decrease of about 25 percent on a per person basis between 1999 and 2010 (Ref. 96). One comment noted that sugar/sucrose consumption has declined by 33 percent in the United States and that per capita added sugars consumption has declined since 1970 when obesity was not a public health concern.

One comment suggested that the contribution from added sugars to the increase in total calories over the past 30 years is relatively minor. The comment cited evidence from USDA that between 1970 and 2009 there was an increase of 425 calories per person per day, and added sugars contributed less than 10 percent (38 calories) of this increased caloric intake.

One comment suggested that the problem of increasing added sugars consumption has mainly been a problem with beverages, not food. The comment said that almost all of the increase in consumption of sugars between the late 1970s and about 2005 has been in beverages. The total amount of added sugars consumed in sweet pastry, dairy and non-dairy desserts, candy, and other sugars-containing foods has remained almost constant, but the added sugars contributed by sweetened beverages has doubled. Total sugars consumption increased from about 59 grams per person per day to about 84 grams per person per day, and added sugars in sweetened beverages increased from about 17.5 to 41.5 grams per person per day. Twenty-four of the twenty-five grams of increase were in sweetened beverages.

(Response) Although added sugars consumption has decreased in recent years, consumption of added sugars still remains high at an average of 13.4 percent of calories among the U.S. population (Ref. 19). The scientific evidence supports Americans limiting their intake of added sugars to no more than 10 percent of calories (Ref. 19). The scientific evidence also is included in the 2015-DGA. Current consumption exceeds the recommended limit for added sugars. Usual intake data shows that added sugars consumption among some populations, especially children and young adults, is even higher. Based on food intakes in the U.S. population from 2007 to 2010, the usual median intake of added sugars exceeded 15 percent of calories and 300 calories for males 4 to 50 years old. For males 14 to 18 years old, the usual median intake was 22.2 teaspoons per day and 492.3 calories per day. The usual median intake of added sugars for males 19 to 30 years was 21.2 teaspoons per day and 454.6 calories per day. Consumption is also high in females. The usual median intake exceeds 15 teaspoons and 300 calories per day in females aged 9 through 30 years (Ref. 97). At the highest calorie level of 3,200 calories per day in the USDA Food Patterns described in the 2015 DGAC Report, the empty calorie limit available for added sugars is 275 calories (Ref. 98). This means that the median usual intake for most age groups based on 2007 to 2010 intake data exceeds the highest empty calorie limits available for added sugars in the USDA Food Intake Patterns. This information shows that added sugars intake in the U.S. population continues to be excessive. Knowing the amount of added sugars in the foods that we eat may help Americans limit their intake of calories from added sugars and reduce their overall consumption of calories.

(B) Comments on Whether an Added Sugars Declaration Is Necessary To Assist Consumers in Limiting Their Added Sugars Consumption

(Comment 161) Many comments supported mandatory declaration of added sugars on the label because the information is necessary to assist consumers in limiting their intake of added sugars. The comments argued that consumers have no way of knowing the quantity of added sugars in a product unless they are listed on the label, and such a declaration would help consumers avoid the consumption of too much added sugars. The comments stated that, in reading ingredient labels, consumers may not know all forms of added sugars that can be in a food, such as concentrated fruit juice, and they may not understand that ingredients are listed in order of predominance. One comment noted that, for many programs across the country in schools and other institutions, the preexisting label makes it difficult for those developing program guidelines to follow the DGA's recommendations and limit the amount of added sugars in provided foods. To date, limiting total sugars has been the only option, which results in complex standards with detailed exemptions for foods with naturally occurring sugars, such as fruit and dairy.

In contrast, many other comments opposed to the mandatory declaration of added sugars on the label argued that a label declaration of the amount of added sugars is not necessary because it does not convey information that consumers cannot already obtain from total sugars and calorie declarations or from the ingredient list. One comment said that we are already addressing how to help consumers maintain appropriate caloric Start Printed Page 33813balance through increasing the prominence of calories on the Nutrition Facts label, and the DGAs are already providing consumers with recommended food choices to increase consumption of nutrient dense foods. Other comments stated that we did not show how an added sugars declaration would provide consumers with any additional information to help consumers maintain healthy dietary practices or enhance the information that the Nutrition Facts label already provides, and therefore, the added sugars declaration fails to assist consumers in maintaining healthy dietary practices. One comment suggested that an added sugars declaration will not help consumers select a nutrient-dense diet because information on total calories and nutrient content already allows for the identification of other nutrient-dense foods. Other comments noted that foods that are major sources of added sugars are products for which all or virtually all sugar is added and the current sugars declaration already reflects the amount of added sugars.

(Response) The calorie declaration, the total sugars declaration, and the ingredient list do not provide the consumer with the amount of added sugars in a serving of a product. An added sugars declaration is necessary to provide consumers with a measure to assess the relative contribution of the added sugars from a serving of food as part of a healthy dietary pattern and enable consumers to avoid a dietary pattern containing excess calories from added sugars. In some foods that are high in added sugars, such as sugar-sweetened beverages, virtually all sugars in the products are added sugars. In these types of foods, it would be possible for the consumer to determine the amount of added sugars in the product by looking at the (total) sugars declaration. However, many other foods contain a mixture of naturally occurring and added sugars. Based on information that is currently declared on the label, the consumer is unable to determine what portion of the total sugars declaration is naturally occurring and what portion of the total sugars declaration is added sugars. Small amounts of added sugars found in many different foods and ingredients can add up throughout the day and can contribute empty calories in the diet at levels that exceed what would otherwise be reasonable within recommended calorie limits. Therefore, an added sugars declaration allows consumers to better compare products and assess whether a particular product fits into a healthy diet. Furthermore, the calorie declaration reflects calories from all macronutrients, and the total sugars declaration would only be a reflection of the amount of added sugars in a product if all of the sugars are added rather than naturally occurring.

Consumers would not be able to determine the relative amount of added sugars in a serving of a product from the ingredient list for several reasons. There are many different types and forms of sugar that may be added to a food during processing and preparation. Consumers also may not recognize the names of some types of sugars to be a sugar (e.g. trehelose). Finally, consumers may also not know that the ingredients are listed in order of predominance by weight, and no quantitative information is provided in the ingredient list.

Although the DGA already provides information on recommended food choices to increase consumption of nutrient dense foods, the DGA does not provide the amount of added sugars in a serving of food that nutritional labeling provides. While some added sugars can be part of a healthy dietary pattern, without a label declaration for added sugars, consumers will not have the information they need to limit added sugars to less than 10 percent of calories. Information about the amount of added sugars in a serving of food and how to put that amount of added sugars into the context of the total daily diet can further assist consumers in reducing their intake of calories from added sugars.

With respect to the comments that suggested we did not show how added sugars would provide consumers with any additional information to help them maintain healthy dietary practices or enhance what the Nutrition Facts label already provides, we are not required to show that consumers will use new information on the label to change their behaviors or dietary practices before requiring the declaration of information on the label. Furthermore, our consumer research shows that without an added sugars declaration, consumers are unable to determine the amount of added sugars in a serving of a product (Ref. 14). Further, the current label provides only information on total carbohydrates and total sugars. A declaration of added sugars on the label would provide the needed information about the added sugars content of a food.

A declaration of the amount of added sugars in a serving of a product will provide more specific quantitative information about the amount of all added sugars found in a serving of a product that is not currently available on the label. We anticipate that providing a declaration of the amount of added sugars in a serving of a product would assist government programs, schools, and other institutions in limiting the amount of added sugars in foods they provide.

(Comment 162) Some comments suggested that added sugars should be declared on the label because this is information that consumers have the right to know.

(Response) While we appreciate consumers' interests, the statutory framework for the declaration of a nutrient under section 403(q)(2) of the FD&C Act is whether the declaration will provide information that will assist consumers in maintaining healthy dietary practices, not whether consumers want access to the information. Furthermore, consumer interest or demand alone does not constitute a material fact under section 201(n) of the FD&C Act and is not a sufficient basis upon which we can require additional labeling for foods (see, e.g., Stauber v. Shalala, 895 F. Supp. 1178, 1193 (W.D. Wisc. 1995) and Alliance for BioIntegrity v. Shalala, 116 F. Supp. 2d 166, 179 (D.D.C. 2000)).

Although consumer interest alone is not sufficient to require mandatory labeling, we have discussed in part II.C that the amount of added sugars in a serving of food is a declaration that meets the statutory framework in section 403(q)(2) of the FD&C Act and, furthermore, it is a material fact because added sugars is a public health concern and knowing the amount of added sugars in a serving of food will assist consumers in maintaining healthy dietary practices.

(Comment 163) In our Preliminary Regulatory Impact Analysis (PRIA), we extrapolated from the welfare effects estimated in a retrospective study on the impact of the Nutrition Labeling and Education Act of 1990 (Ref. 99) to quantify benefits of the proposed rule. Some comments suggested that it was inappropriate for us to rely on a paper written by a graduate student, which was not peer-reviewed, as the basis for our proposal to require the mandatory declaration of added sugars. Another comment argued that we provided no basis to require the mandatory declaration of added sugars on the label other than the Abaluck paper.

(Response) We note that we did not rely on the information provided in the Abaluck paper as the basis for our proposal to require the mandatory declaration of added sugars on the label. The information in the Abaluck paper was used to estimate economic benefits Start Printed Page 33814of our proposal for the PRIA. We are relying on information related to overconsumption of added sugars, the reduction of the nutrient density of the diet when substantial amounts of added sugars are present, evidence showing the consumption of sugar-sweetened beverages is associated with increased body weight and adiposity, and evidence showing that consumption of health dietary patterns characterized, in part, by lower consumption of sugar-sweetened foods and beverages is associated with a decreased risk of CVD.

(Comment 164) One comment noted that the FD&C Act only gives us the authority to add nutrients to the Nutrition Facts label to help consumers maintain healthy dietary practices, but our definition of “healthy” excludes any consideration of sugars content.

(Response) The comment is referring to our regulation for implied nutrient content claims (§ 101.65). Section 101.65(d)(1)(ii)(2) provides requirements for the use of the term “healthy” or related terms on the label or in the labeling of foods. The regulation requires that a food must meet requirements for fat, saturated fat, cholesterol, and other nutrients, but does not include limitations on the amount of total or added sugars that a food may have if it bears an implied “healthy” nutrient content claim. Our authority in section 403(r) of the FD&C Act to define a term, by regulation, to characterize the level of a nutrient in the label or labeling is distinct from our authority in section 403(q) of the FD&C Act to require the declaration of a nutrient in nutrition labeling. As previously discussed in part II.B.4, we intend to revisit our other regulations for nutrient content claims at a later date to determine if changes are necessary.

(Comment 165) One comment said that sources of sugar contribute the same number of calories per gram weight of food, and calories should be the principal nutrient of concern of a population striving to achieve desired weight and control obesity. The comment suggested that giving consumers a false impression that reducing added sugars without reducing calories may actually delay finding a real solution to the problem.

(Response) We have increased the prominence of calories on the label because of its importance for consumers to consider for the purposes of weight management. We are not suggesting that consumers should ignore or consider information about the amount of calories in a serving of a food to be secondary to the amount of added sugars in a serving of food. Instead, we are requiring the declaration of added sugars on the label to provide one additional piece of information to consumers to assist them in selecting foods that contribute to a healthy dietary pattern. Therefore, we do not agree that an added sugars declaration is unnecessary because the total amount of calories in a serving of a food is already displayed on the label.

(Comment 166) One comment stated that by mandating declaration of both total sugars and added sugars, we are creating an arbitrary distinction between two types of sugars which will not lead to any nutritional differences for consumers.

(Response) We do not agree with the comment that the distinction between total and added sugars is arbitrary and will not lead to any nutritional differences in the foods that consumers select. The addition of added sugars to foods provides additional calories which can make it difficult for consumers to meet nutrient needs within calorie limits and can lead to issues with weight management. Sugars, added in excess, do not provide any health benefits. In addition, foods high in added sugars tend to be lower in beneficial nutrients. By providing a declaration of added sugars on the label, consumers will have additional information about a product that can assist them in determining how much sugars have been added to a food. Moreover, the intake of added sugars from sugar-sweetened foods and beverages needs to be reduced as part of a healthy dietary pattern. A healthy dietary pattern, when compared to less healthy dietary patterns, such as the dietary pattern of the current U.S. general population, is strongly associated with a reduced risk of CVD. The intake of foods with naturally occurring sugars, such as fresh fruits and vegetables, is encouraged as part of a healthy dietary pattern and not recommended to be reduced.

(C) Comments on a Lack of a Chemical or Physiological Distinction Between Naturally Occurring and Added Sugars

(Comment 167) In the preamble to the proposed rule (79 FR 11879 at 11905), we recognized a lack of a chemical or physiological distinction between added and naturally occurring sugars. Many comments agreed that naturally occurring and added sugars are the same and argued that, because there is no chemical or physiological distinction, we should not require the mandatory labeling of added sugars. One comment cited a paper by Murphy and Johnson (2003) that discusses added sugars in the context of the 2000 DGA and suggested that it would be challenging to require a declaration of added sugars on the label because they are not chemically or physiologically distinct from naturally occurring sugars (Ref. 100).

However, other comments suggested that there is evidence that not all sugars are chemically the same. The comments suggested that different sugars are metabolized differently in the body. One comment stated that naturally occurring sugars have more nutritional value than those added to foods. Another comment stated that sugars that are found naturally in foods are consumed in combination with all other ingredients and nutrients in that food and that the body reacts to inherent sugars in such combinations. The comment noted that emerging studies suggest that inherent sugars in combination with plant nutrients, for example, behave differently in the body than added sugars without such accompanying nutrients. These comments indicated that it is important for consumers to know how much added sugars are in their products because they are inherently different from naturally occurring sugars.

(Response) A physiological or chemical distinction between added and naturally occurring sugars is not a prerequisite to mandatory declaration under section 403(q)(2)(A) of the FD&C Act. We explained in the preamble to the proposed rule that our scientific basis for the added sugars declaration, in fact, differed from our rationale to support other mandatory nutrients related to the intake of a nutrient and risk of chronic disease, a health-related condition, or a physiological endpoint (see 79 FR 11879 at 11904). Rather than relying on a causal relationship between added sugars to obesity or heart disease, we considered, in the preamble to the proposed rule (79 FR 11879 at 11902 through 11908) and the preamble to the supplemental proposed rule (80 FR 44303 at 44307 through 44309), the contribution of added sugars as part of healthy dietary patterns and the impact to public health from such patterns for the purposes of the general population. Thus, the comments did not focus on added sugars as a component of sugar-sweetened foods and beverages that have been found to have health implications as part of a dietary pattern, or as a nutrient that provides a source of empty calories consumed by the U.S. population in excess, which make it difficult for consumers to meet nutrient needs within calorie limits. Providing consumers with information about the amount of added sugars in a serving of a product will assist consumers in Start Printed Page 33815planning a healthy diet. We have concluded that the consumption of added sugars is related to health for a number of reasons, and consumers will benefit from information about the added sugars content of a food on the label.

(Comment 168) Many comments did not support an added sugars declaration because added sugars are not chemically or physiologically distinct from naturally occurring sugars, and a separate declaration of added sugars implies that there is a distinction. The comments suggested that an added sugars declaration would arguably be false and misleading because it would convey to the reasonable consumer that added sugars are chemically different than naturally occurring sugars and/or that added sugars has different health effects than naturally occurring sugars. One comment further asserted that implying superiority of one source of a nutrient versus another, when they are not materially different and are chemically, nutritionally, and functionally equivalent, is inherently misleading. Another comment suggested that a separate declaration for added sugars could cause consumers to believe that naturally occurring sugars are more beneficial.

(Response) As we explained in our response to comment 167, a physiological or chemical distinction between added and naturally occurring sugars is not a prerequisite to mandatory declaration under section 403(q)(2)(A) of the FD&C Act. In fact, some nutrients currently declared on separate lines in the Nutrition Facts label may be related to the same chronic disease risk or physiological endpoint (e.g., saturated fat and trans fat and risk of CVD). Therefore, we disagree that a separate declaration necessarily implies a chemical or physiological distinction. Furthermore, the comments may not have considered the basis for why the declaration of added sugars is necessary to assist consumers in maintaining healthy dietary practices. A dietary pattern characterized, in part, by larger amounts of sugar-sweetened foods and beverages is associated with greater risk of CVD than a healthy dietary pattern that includes less sugar-sweetened foods and beverages. Moreover, added sugars provide excess calories in the U.S. diet (see our responses to comment 29 and comment 177), and these additional empty calories make it difficult for consumers to meet nutrient needs within their calorie limits and can lead to issues with weight management. Therefore, the intake of added sugars in the current U.S. dietary pattern is a public health concern. The declaration of added sugars provides factual, accurate information about the amount of added sugars in a serving of food, and we are requiring the declaration consistent with our authority in section 403(q) of the FD&C Act. The added sugars declaration is not inherently misleading as the comments suggest, as is addressed further in part II.C.3.

(Comment 169) Some comments suggested that we are being inconsistent in our treatment of the evidence for nutrients because we are considering whether certain dietary fibers have a beneficial physiological effect, but we are not considering whether added sugars have a separate and distinct physiological effect in our determination that added sugars should be declared on the label.

(Response) In the case of dietary fiber, we are requiring that a dietary fiber have a beneficial physiological effect to human health for the purposes of declaration because there are dietary fibers currently present in foods that are being declared on the label indicating to consumers that they have the same beneficial physiological effects to human health as other fibers, when in fact, they do not. We previously have discussed in this section that added sugars, independent of sugars naturally present in foods, can have a negative impact on health. A decision to not require a separate declaration of added sugars on the label would not allow consumers to determine the additional sugars which have been added above and beyond what is naturally present in a food which are contributing extra calories to their diet and could also contribute to a dietary pattern that is associated with disease risk.

(Comment 170) One comment stated that the Nutrition Facts label must remain a source of information about nutrients that are chemically distinct based on analysis. The comment asserted that we have not provided a reasonable basis for defining added sugars based on source rather than chemical composition.

(Response) We disagree with the comment that a chemical distinction must be a requirement for declaration of a nutrient on the label. Section 403(q)(2)(A) of the FD&C Act provides discretion to the Secretary, and by delegation, to FDA, to determine whether providing nutrition information regarding a nutrient will assist consumers in maintaining healthy dietary practices and when to require information relating to such additional nutrient be included in the label or labeling of the food. This section does not include limitations on chemical distinctions.

(D) Comments Questioning our Reliance on Conclusions and Information From the 2010 DGA and the 2015 DGAC

(Comment 171) Many comments questioned our reliance on conclusions and information in the 2010 DGAC Report and 2010 DGA. One comment asserted that it is a gross expansion of the law governing the DGA to use selective dietary guidance from a single edition to promulgate food labeling regulations. Some comments suggested that the evidence cited by the 2010 DGAC and 2010 DGA was not strong enough to support a declaration of added sugars. One comment stated that neither the 2010 DGA nor the 2010 DGAC Report provided a preponderance of scientific information or conclusive, documented, or strong scientific evidence to support these suppositions. The comments asserted that we did not address the strength of the evidence that the 2010 DGAC reviewed as the basis for their recommendations. One comment also noted that the 2010 DGAC addressed few or limited questions related to impact of added sugars on health due to lack of available evidence. The comment stated that what evidence there was at the time that the 2015 DGAC Report was published was not conclusive.

(Response) We note that we did not specifically rely on conclusions or recommendations made by the 2010 DGAC Report or in the 2010 DGA. We considered the information and underlying data presented in the 2010 DGAC Report and 2010 DGA that was used as the basis for their conclusions and recommendations and determined that, for the purposes of nutrition labeling, the evidence in the 2010 DGAC and 2010 DGA, along with other data and information we considered, supports the declaration of added sugars on the Nutrition and Supplement Facts labels (79 FR 11879 at 11902 through 11908). The DGAs have recommended that Americans reduce their intake of what we are defining to be added sugars since the early 1980s, so the recommendation to limit consumption of added sugars is not new. Since publication of the 2010 DGA and 2010 DGAC Report, new evidence has become available on added sugars and dietary patterns that we have considered. We have determined that this evidence further supports a declaration of added sugars on the label.

The comment suggesting that the evidence on added sugars is not conclusive, documented, or strong is referring to the factors that we considered for mandatory declaration of nutrients on the label for which there is Start Printed Page 33816an independent relationship between the nutrient and chronic risk of disease. Our determination that added sugars should be declared on the label for the general population (see part II.H.3) was not based on the factors used to determine mandatory or voluntary declaration for these other non-statutory nutrients that have an independent relationship related to a chronic disease, a health-related condition, or health-related physiological endpoint. Instead, our review is based on the need for the declaration of nutrient information on the labels to assist consumers in limiting their consumption of calories from added sugars found in sugar-sweetened foods and beverages and consuming a healthy dietary pattern that is associated with a reduce risk of CVD.

(Comment 172) Many comments took issue with the 2010 DGA's use of food pattern modeling to support the recommendation to reduce the intake of calories from added sugars. One comment stated that the amount of solid fats and added sugars in the USDA food patterns is the outcome of using the remaining calories in that pattern rather than the evidence-based research. Other comments said that the USDA Food Patterns lack the scientific underpinning on which to base official recommendations.

Some comments said that the same issues that prevent FDA from using food consumption data, menu modeling, and dietary survey data to determine DRVs are also applicable when considering the mandatory declaration of non-statutory nutrients. One comment noted that we have concluded that menu modeling is not related to disease risk and is not suitable for determining recommended intakes.

Some comments also noted that the 2010 DGA clearly states that the USDA Food Patterns are only one example of suggested eating patterns and that the USDA Food Patterns have not been specifically tested for health benefits. Another comment said that the extremely low suggested intakes of 6 to 12 teaspoons of added sugars in the USDA Food Patterns have no historical basis and lack context.

(Response) We disagree with comments that questioned the use of evidence based on food pattern modeling to support the added sugars declaration so that consumers can use the information to reduce calories from solid fats and added sugars. While the food pattern modeling used to create the USDA Food Patterns was used to compare current consumption data with recommended intakes from the USDA Food Patterns, the 2010 DGA also considered information about the impact of added sugars on nutrient density and on their implications for weight management (Ref. 77). Furthermore, the fact that the USDA food patterns were not studied for health effects until recently, does not lessen our reliance on the information as part of our basis for a mandatory declaration of added sugars. Since publication of the proposed rule, the USDA Food Patterns have been studied for their association with disease risk (Ref. 101). We also have evidence that dietary patterns characterized, in part, by lower intakes of sugar-sweetened foods and beverages are associated with a reduced risk of CVD that further supports a mandatory declaration of added sugars on the label for the general U.S. population. It is not clear what is meant by the comment which stated that the extremely low suggested intakes of 6 to 12 teaspoons of added sugars in the USDA Food Patterns have no historical basis and lack context. To the extent the comment disagrees with the suggested intakes of 6-12 teaspoons of added sugars, we note that there is evidence showing that Americans are consuming too many calories from added sugars as well as evidence that it is difficult to meet nutrient needs within calorie limits when excessive amounts of added sugars are consumed.

(Comment 173) In the preamble to the proposed rule (79 FR 11879 at 11890), we discussed the factors that we considered for mandatory and voluntary declaration of non-statutory nutrients. We considered the scientific evidence from other U.S. consensus reports or DGA policy reports (79 FR 11879 at 11890). We also listed the DGA policy reports among other reports that we would consider to be U.S. consensus reports.

One comment questioned whether the DGA is a consensus report because it is a report that is issued jointly every 5 years by the USDA and HHS. The comment said that the DGAC Report is an advisory report, and the Secretaries of USDA and HHS have sole responsibility and discretion as to the final content of the DGA. The comment also noted that the DGAC Report does not undergo independent external review.

(Response) In the preamble to the proposed rule (79 FR 11879 at 11885 through 11887), we listed new dietary recommendations, consensus reports, and national survey data as sources of information that we considered when developing the proposed amendments to the regulations. Furthermore, our review of the scientific evidence in the 2010 DGA relates to the intake of added sugars and the role of such information in assisting consumers to maintain healthy dietary practices and the need for consumers to be able to readily observe and comprehend the information and to understand its relative significance in the context of a total daily diet (79 FR 11879 at 11891). Therefore, whether the 2015 DGAC Report is or is not a consensus report is not relevant for the added sugars declaration. Furthermore, we considered the underlying evidence related to added sugars that supported the recommendation to limit consumption of calories from solid fats and added sugars and did propose to require a declaration of the amount of added sugars in a serving of a product on the label because of the 2010 DGA recommendation related to calories from solid fats and added sugars. We considered the evidence in the 2010 DGAC Report and 2010 DGA, along with other data and information in the proposed rule to support a declaration of added sugars on the Nutrition Facts and Supplement Facts labels (79 FR 11879 at 11902 through 11908).

(Comment 174) One comment said that the proposed rule incorrectly assumes that reduced consumption of added sugars will reduce the problem of obesity, but noted that we acknowledged in the proposed rule that solid fats and added sugars do not contribute to weight gain any more than another source of calories.

(Response) We have not changed our position with regard to the effect of calories from solid fats and added sugars on weight gain. However, as noted in the 2010 and 2015-2020 DGAs, consumption of excess solid fats and added sugars make it difficult to meet nutrient needs within calorie limits (Refs. 28, 30). Because sugars added to foods during processing increase the calorie content of the food without increasing other nutrients in the food, added sugars as an ingredient could conceivably lead to weight gain if a consumer striving to meet their nutrient needs does so by consuming foods containing too many added sugars. Further, we stated in the proposed rule that we know that foods containing solid fats and added sugars make up a significant percentage of the American diet and are a source of excess calories (79 FR 11879 at 11904).

(Comment 175) Some comments said that we are not being consistent with the dietary recommendations we use for requiring nutrients on the label because the 2010 DGA also recommended replacing saturated fats with mono and polyunsaturated fats, yet the labeling of mono and polyunsaturated fats is voluntary on the label.Start Printed Page 33817

(Response) We do not rely on the 2010 DGA recommendation to reduce calories from solid fats and added sugars. Instead, we examined the underlying evidence and concluded that added sugars should be declared on the label. Furthermore, the 2010 DGA recommendations related to mono and polyunsaturated fats are about replacing saturated fats with the mono and polyunsaturated fats, because reduction of saturated fats is associated with reductions in blood LDL cholesterol and, therefore, the risk of CVD. The 2015 DGA corroborates this finding. Saturated fats are already declared on the label, so consumers have the information they need to reduce their intake of saturated fat. In addition, current evidence does not show that there is an inherent benefit to consumption of mono and polyunsaturated fats by themselves. The benefit comes from reduction of saturated fats in the diets by way of replacement. Furthermore, the scientific evidence supports consuming a healthy dietary pattern that is low in saturated fats. A healthy eating pattern limits saturated fats, and the scientific evidence supports consumption of added sugars to to less than 10 percent of calories per day from saturated fats (Ref. 19). Therefore, Americans currently have the information on the label which will allow them to limit saturated fats in their diet.

d. Nutrient Density

(Comment 176) Many comments suggested that including a declaration of the amount of added sugars in a serving of a product can help consumers select foods that contribute to a more nutrient-dense diet. The comments noted that the 2010 DGA suggested that reduced intake of added sugars allows for increased intake of nutrient-dense foods which may help individuals to control their total caloric intake and better manage their weight. The comments also said that sugars intrinsic to foods are accompanied by nutrients, whereas added sugars are not. The comments referred to the discussion in the proposed rule related to intake of added sugars and its association with a lower intake of essential nutrients (79 FR 11879 at 11903) and suggested that most major sources of added sugars are high in calories and fats, but lack meaningful amounts of dietary fiber, essential vitamins or minerals. The comments said that, when added sugars intake is 10 to 15 percent of calories, the median intakes of nine nutrients (vitamin A, vitamin E, vitamin C, folate, magnesium, potassium, vitamin K, fiber, and total choline) are significantly lower than the median intakes of those nutrients for someone consuming 0 to 5 percent of their calories from added sugars (Ref. 102). Another comment noted that IOM recommends that the intake of added sugars not exceed 25 percent of energy to ensure adequate intake of essential micronutrients that are typically not present in foods high in added sugars (Ref. 75). One comment said that consumers who eat less added sugars consume fewer calories and more foods rich in essential nutrients.

In contrast, many comments said that a declaration of added sugars on the label will not assist consumers in constructing a more nutrient dense diet. The comments said that there is a lack of science to support the contention that added sugars intake displaces nutrients or causes a decrease in the intake of nutrient-rich foods in the diet of the general population, at current intake levels. One comment cited the 2010 DGA conclusion that added sugars replace nutrient-dense foods and beverages and make it difficult for people to achieve the recommended nutrient intake while controlling their calorie intake, but noted that no evidence-based review was conducted on this topic, and no conclusive, documented, or strong evidence was cited to support that added sugars intake causes nutrient displacement, or decreased consumption of nutrient-rich foods. Another comment noted that although a recent analysis of NHANES data (Ref. 102) reaffirmed the conclusion of the 2002 IOM report (Ref. 75), individuals with intakes of greater than 25 percent of calories from added sugars appear to be at greater risk for nutrient inadequacy based on comparison with the DRIs. The comment said that the authors of the study also clarify the real-world impact from these higher intake amounts, and stated “However, high levels of added sugars intake occur among only a small proportion of the population and cannot explain the existing problem of poor nutrient intake in the U.S. population as a whole.”

(Response) We agree that a declaration of the amount of added sugars can assist consumers in selecting foods that contribute to a more nutrient dense diet. The IOM did not establish a UL for sugars or added sugars, however they did conclude that increased consumption of added sugars can result in decreased intakes of certain micronutrients based on their review of the evidence available at the time that the IOM Dietary Reference Intakes for energy, carbohydrate, fiber, fat, fatty acids, cholesterol, protein, and amino acids were published (Ref. 103). As noted in comments, additional evidence has become available since the IOM DRI reports were published, which supports their conclusion (Ref. 102). Therefore, although the 2010 DGAC did not conduct an evidence-based review on this topic, there is documented evidence that increased consumption of added sugars can make it difficult for individuals to meet nutrient needs.

We disagree with the suggestion added sugars consumption is not contributing to poor nutrient intake in the U.S. population as a whole and thus should not be required on the label because only a small proportion of the population is consuming large amounts of added sugars. The 2015 DGAC found that the general U.S. population is consuming 13.4 percent of its calories from added sugars. As the comments noted, Marriott et al. found that median nutrient intakes were lower when added sugars intake was 10 to 15 percent of calories (Ref. 102). Therefore, even at intake levels below 25 percent of calories, nutrient intake can be negatively impacted by increased consumption of added sugars. Furthermore, based on NHANES data from 2007 to 2010, males aged 9 to 50 are consuming more than 300 calories per day from added sugars, and females aged 9 to 30 are consuming more than 250 calories per day from added sugars (Ref. 104). Males between the ages of 14 to 18 years old consumed almost 400 calories per day from added sugars (Ref. 104). Although these subpopulations may not make up a majority of the population, these groups include children and young adults who are growing and need nutrients for proper growth. Therefore, the impact of added sugars consumption on nutrient density in these specific populations is an important consideration for the declaration of added sugars.

As for the comment which said that consumers who eat less added sugars consume fewer calories and more foods rich in essential nutrients, the comment did not provide evidence to support this statement. Therefore, we are unable to determine if this information adds to other evidence we have, which suggests that added sugars can decrease the nutrient density of the diet.

(Comment 177) Many comments suggested that the added sugars declaration does not assist consumers in constructing a nutrient dense diet because there are nutrient dense foods which contain added sugars, and the declaration may obscure the fact that some foods with added sugars may actually be good sources of beneficial nutrients. One comment argued that the added sugars declaration does not meet Start Printed Page 33818the proposed rule's stated goal to convey information necessary to meet recommendations to construct diets containing nutrient-dense foods because the declaration does not provide consumers with any means to differentiate between foods that will contribute phytonutrients to their diet from foods with empty calories. The comments provided examples of nutrient-dense foods, such as yogurt, cranberries, tart cherries, and cereal, which contain added sugars.

Some comments from the cranberry industry asked that we make an exception to added sugars labeling for cranberries, which require sweetening for palatability. The comments noted that cranberries are a nutrient-dense fruit with many known health benefits. Unlike other fruits, cranberries have little natural sugar and, therefore, have a uniquely tart taste. The comments expressed concern that cranberry products would be considered “unhealthy” based solely on their added sugars content. The comments said that the evidence shows that cranberries are rich in polyphenols, specifically flavonoids, and have a positive impact on urinary health. The comments also cited evidence that the addition of sugar to cranberry products does not decrease the polyphenol content. Furthermore, according to the comments, the calorie content of each serving of dried cranberries is similar to that of other dried fruits, and cranberry juice cocktail (27 percent juice) is the standard equivalent to other 100 percent juices with similar total calorie and sugar levels. The comments also noted that they contribute to recommended fruit intake amounts in the DGA.

The comments said that requiring the declaration of added sugars on cranberry products may mislead consumers to believe that nutrient-dense foods, such as cranberries, with their proven health benefits, are somehow less nutritious than foods with the same amount of naturally occurring sugar, or even those with more total sugars. The comments expressed concern that a focus on added sugars may have the unintended consequence of driving consumers away from nutrient dense products with moderate amounts of sugar.

Many comments said that a mandatory declaration of added sugars could be damaging for the cranberry industry or for the tart cherry industry. One comment noted that the drying operation used by the tart cherry industry reduces the moisture content while simultaneously increasing the percentage of sugar. The use of sugar as a natural preservative combats the threat of mold and yeast contamination.

Several comments noted that USDA grants an exemption, which is similar to that which the comments requested for the labeling of added sugars on cranberry products, for cranberry products offered for sale in our nation's schools. One comment noted that the IOM, in its report titled “Nutrition Standards for Foods in Schools: Leading the Way Toward Healthier Youth,” made recommendations for nutrition standards for competitive foods offered in schools, and has made an exception for yogurt from its recommended general sugar standard of 35 percent or less of calories from total sugars.

One comment suggested that the added sugars declaration will not help consumers select foods that contribute to a nutrient dense diet because information on total calories and nutrient content (e.g. fiber plus vitamins and minerals) already allows for the identification of nutrient-dense foods.

(Response) Consumers now have access to nutrient information provided on the nutrition label that they can use to plan a nutrient dense diet. We have required those nutrients that are of the greatest public health significance be declared in nutrition labeling (58 FR 2079, 2107). An added sugars declaration is an important piece of information because consumers need to ensure their diet does not contain excess calories from added sugars which can make it difficult for consumers to meet nutrient needs within calorie limits and can lead to issues with weight management.

As mentioned in the 2010 DGA, many foods that contain added sugars often supply calories, but few or no essential nutrients, and no dietary fiber (Ref. 77). However, there are some foods, such as dried fruits, yogurt, and cereal, that contain significant amounts of beneficial nutrients as well as added sugars. The declaration of added sugars will enable consumers to understand the relative significance of the added sugars content in a serving of dried fruit, yogurt, cereal, and other foods that may contribute beneficial nutrients to the diet and determine how to incorporate those foods into a healthy dietary pattern and meet their nutrient needs within calorie limits. As discussed in the 2015 DGAC report, there is room for Americans to include limited amounts of added sugars in their eating patterns, including to improve the palatability of some nutrient-dense foods, such as fruits and vegetables that are naturally tart (e.g. cranberries and rhubarb). Healthy eating patterns can also accommodate other nutrient dense foods with small amounts of added sugars, such as whole-grain breakfast cereals or fat-free yogurt, as long as the calories from added sugars do not exceed 10 percent per day, total carbohydrate intake remains within the AMDR, and total calorie intake remains within limits (Ref. 19).

The added sugars declaration is just one piece of information that consumers can use to help them construct a healthful dietary pattern that may include some added sugars. We acknowledge that some consumers may focus in on the amount of added sugars in a product and may judge it to be a less nutritious product even though it contains beneficial nutrients. The added sugars declaration on the label is new information that consumers will not have seen before. In collaboration with Federal and other partners, we plan to engage in educational and outreach activities for consumers and health professionals about the use of information on the Nutrition Facts and Supplement Facts labels. Part of that education will include information about added sugars. A key message related to added sugars will be that consumers should consider all of the information on the label when constructing a healthful dietary pattern and not focus in on one specific nutrient, such as added sugars. The message related to consumption of added sugars is not to eliminate added sugars or foods high in added sugars from the diet; instead, the message is to limit overall consumption of added sugars in the diet to less than 10 percent of total calorie intake. Therefore, if consumers choose to eat foods with sugars added to them for palatability, such as cranberries, they may do so in moderation, and cut back on added sugars elsewhere in the diet.

We decline to exempt certain nutrient dense foods containing added sugars from the requirement to declare the amount of added sugars in a serving of a product on the label. If such products are exempt from added sugars labeling, consumers may assume incorrectly that they contain no added sugars. Providing added sugars information on the label for all foods allows consumers to compare foods and make informed choices. It allows them to also make trade-offs in their diet to achieve an overall healthy dietary pattern that contains less than 10 percent of total calories from added sugars. As part of our education and outreach activities, we plan to educate consumers that the amount of added sugars in a serving of a product should be considered along with other information on the label Start Printed Page 33819when constructing a healthy dietary pattern.

While other government programs and consensus bodies have excluded cranberries and yogurt from their programs or recommended limits on sugars, the purpose of those programs and reports are different than the purpose of the information on the Nutrition and Supplement Facts labels. The purpose of the Nutrition and Supplement Facts labels is to provide nutrition information to consumers to allow them to make informed choices about the foods that they eat. Therefore, although some nutrient-dense foods containing added sugars have been excluded from government programs or recommendations, the same approach does not apply to the Nutrition and Supplement Facts labels.

With regard to the comment that said that the drying operation used by the tart cherry industry reduces the moisture content while simultaneously increasing the percentage of sugar, we would not consider sugars that naturally exist in the tart cherries prior to the drying process to be added sugars. Only sugars that have been added to the fruit would be required to be declared as added sugars on the label.

e. Reformulation

(Comment 178) While some comments said that an added sugars declaration will be an incentive for food manufacturers to reformulate, other comments said that reformulation of products to reduce the added sugars content may not result in products that are healthier. Some comments said that an added sugars declaration may lead to reformulation or changes in consumer behavior that would not improve overall nutritional profile or nutrient density of the diet and may result in overconsumption of other macronutrient sources (e.g. fat) without a reduction of calories. The comments said that added sugars could be replaced with bulking agents, which provide calories and carbohydrate. Another comment said that reformulation of products containing added sugars could result in an increased use of artificial sweeteners (i.e. low calorie sweeteners), which could be bad for health. Other comments noted that consumers have many food and beverage choices that are reduced in total and added sugars.

(Response) Absent data, we do not know whether manufacturers will reformulate their products if we require the declaration of added sugars on the label. Likewise, absent data, we do not know whether consumers will select reformulated products that may be higher in fat, calories, or low-calorie sweeteners. In our efforts to educate consumers and health professionals about the use of the label, we intend to encourage consumers to consider all of the information on the label when making decisions about what foods to eat and how much rather than focusing on one specific nutrient, such as added sugars. If consumers take all label information into consideration when making dietary choices, they will recognize when a product is low in added sugars, but still contains a significant amount of calories and carbohydrate or fat per serving. They can also see if low-calorie sweeteners have been added to a product by looking at the ingredient list.

With respect to the comment which suggested that low-calorie sweeteners may be harmful to health, as noted in our Overview of Food Ingredients, Additives & Colors, there is no convincing evidence of a cause and effect relationship between these sweeteners and negative health effects in humans. We have monitored consumer complaints of possible adverse reactions for more than 15 years (Ref. 105).

(Comment 179) One comment asked what studies we used to suggest that declaring added sugars on the label will result in firms reducing the amount of added sugars in products and result in an overall reduction of sugar consumption.

(Response) In the preamble to the proposed rule (79 FR 11879 at 11904), we said that the mandatory declaration of added sugars may prompt product reformulation of foods high in added sugars like what was seen when trans fat labeling was mandated. We do not know whether or how manufacturers will reformulate their foods as the result of a mandatory added sugars declaration.

f. Calories From Solid Fats and Added Sugars

(Comment 180) The 2010 DGA provided a key recommendation that Americans should reduce their intake of calories from solid fats and added sugars (SoFAS). In the preamble to the proposed rule (79 FR 11879 at 11904), we concluded that the disclosure of saturated fat and trans fat on the label not only provides information to consumers which can be used to reduce their intake of these nutrients, and thus reduce their risk of CVD, but the declaration of saturated and trans fats on the label could also provide a marker for foods that contain solid fats that are abundant in the diets of Americans and contribute significantly to excess calorie intake. We stated that similar information is not available on the label for calories from added sugars (id.).

Several comments disagreed that the declared amounts of saturated and trans fats can be used as markers for solid fats in the diet. The comments stated that the calculation of calories from SoFAS is not feasible based on the information that is proposed for the label, and the nature of the calculation that consumers would need to perform would not be consistent with our objectives to make the label more usable and understandable for consumers. The comments noted that it is not feasible to determine the amount of solid fats from the saturated and trans fat declarations alone because the label does not provide the quantity of solid fat that USDA used in its menu modeling analysis. The comments further stated that, while saturated fat and trans fat may be components of solid fats, those values alone cannot be used to determine the solid fat content of a food because it is not known what portion of these declarations would be identified in the menu modeling program used by USDA.

One comment said that the declaration of saturated and trans fat declarations are for the purposes of lowering risk of CVD and not for estimating the SoFAS content of a food. The identification of SoFAS is for the purposes of developing the USDA Food Patterns and is not a suitable approach for mandating an added sugars declaration.

Another comment suggested that the sugars declaration on the label can serve as a marker for added sugars in the same way that saturated fats serves as a marker for solid fats. The comment also suggested that saturated fats in certain foods are not solid fats (such as in nuts) in the same way that sugars in certain foods are not added sugars (such as fruit juice and milk).

(Response) We used the term “marker” in the preamble to the proposed rule to mean that the amount of saturated and trans fats on the label would give consumers a very good idea or a reasonable estimate of the quantity of solid fats in a serving of a food. Although many fat containing foods have a mixture of fats, such as nuts and oils that may contain some solid fats and some unsaturated fats, the saturated fat and trans fat declarations would account for these differences. In addition, even though one would need more information on how saturated fats were quantified for the development of the USDA Food Patterns to determine the exact amount of calories from solid fats, such specificity would not be needed to obtain a reasonable estimate of solid fats using the declared value of Start Printed Page 33820saturated fat and trans fat combined. Furthermore, unlike solid fats, there is no information currently on the label that could give consumers an estimate of the amount of added sugars in a serving of food when the food contains both naturally occurring and added sugars. In such a case, the amount of total carbohydrate or total sugars in a serving of a food cannot be used as a reasonable estimate of the amount of added sugars in a serving of the food.

We disagree with the comment suggesting that the total sugars declaration can serve as a marker of added sugars in the same way that the saturated fat and trans fat declaration can serve as a marker for solid fat. When both naturally occurring and added sugars are present in a food, the consumer has no way of knowing from the total sugars declaration what portion of that total sugars declaration represents the amount of added sugars in a serving of the food.

Since the publication of the proposed rule, the 2015 DGAC Report became available. In that report, the solid fats and added sugars were divided within the “empty calories” category with 45 percent of the empty calorie allowance allocated to added sugars and 55 percent of the empty calorie allowance allocated to solid fats. Furthermore, the scientific evidence in the 2015 DGAC Report for limiting calories from added sugars is separate from that for limiting saturated fats, which are a key contributor of solid fats to the diet. There is adequate information available to consumers on the label to assist them in meeting the key recommendation to limit calories from saturated fats to less than 10 percent of total calories; however, there is no such information on the label to help consumers limit their consumption of added sugars to no more than 10 percent of total calories. Whether there is adequate information on the label to assist consumers in limiting solid fats is not related to an added sugars declaration.

(Comment 181) The comments were divided on whether calories from added sugars should be declared on the label. One comment said that, if added sugars are declared on the label, we should require the declaration of calories from added sugars. Another comment stated that concerns about the scientific evidence on the health effects of added sugars and the usefulness of a declaration to improve food choices apply to whether the declaration of added sugars is in gram units or declared as calories from added sugars. Other comments suggested that a declaration of calories from added sugars is unnecessary and not beneficial. The comments noted that the total number of calories in a serving of food is prominently displayed in the proposed format. The comments said that a declaration of calories from added sugars could cause consumer confusion, particularly for consumers who are unable to readily understand the distinction between a gram value and calories from added sugars. The comments noted that consumers are already familiar with the gram unit from the total sugars declaration. The comments said there is no evidence from consumer research that a declaration of calories from added sugars in lieu of grams would lead consumers to greater reductions in intake of added sugars.

(Response) Evidence shows that heathy dietary patterns associated with a decreased risk of chronic disease are lower in sugar-sweetened foods and beverages. Consumption of too much added sugars can impact the nutrient density of the diet, and consumption of sugar-sweetened beverages are associated with increased adiposity in children. Thus, the added sugars declaration is information that is necessary for consumers to construct a healthy dietary pattern lower in added sugars and that is less than 10 percent of calories from added sugars. The information on the label includes the gram amount of added sugars in a serving of a food product and the percent DV declaration for added sugars. There is no need for consumers to be able to determine the amount of calories from added sugars in a serving of a food because we are establishing a DV that is based on 10 percent of total calories (50 grams in children and adults 4 years of age and older and 25 grams for foods purported to be for children 1 through 3 years of age). Consumers can use the percent DV declaration to determine what percentage of total calories a serving of a food contributes. They can also use the gram declaration of added sugars to construct a diet that is low in added sugars by comparing the amount of added sugars between products and by using trade-offs in the diet if they choose to include certain foods which have a large amount of added sugars.

g. Consumer Research and Consumer Use of Added Sugars Declaration

(Comment 182) One comment said that research does not substantiate a causal effect between including added sugars information on the Nutrition Facts label and decreased added sugars intake. The comment cited a study in which data from the 1994-96 Continuing Survey of Food Intakes by Individuals (CSFII) was used to model total consumption of added sugars and the Diet and Health Knowledge Survey conducted by the USDA was used to determine usage of labeling information on total sugars (Ref. 106).

(Response) Although the results of the study showed that regular use of sugar information on nutrition labels is associated with a significantly lower density of added sugar in the diet, the results of this study cannot be used to determine whether there is a causal effect between including added sugars information on the Nutrition Facts label and decreased added sugars intake. The study did not assess use of labeling information on added sugars, but rather use of information on total sugars.

(Comment 183) One comment noted that the use of the “no added sugars” or “without added sugars” nutrient content claim focuses on ingredients used in a product (§ 101.60(c)). The comment said that manufacturers must put a disclaimer on the label of their product if the food is not low or reduced in calories so that consumers are not misled about the calories associated with such products. The comment suggested that consumers could potentially be misled because when the amount of added sugars in a serving of a product is declared on the label, manufacturers who are currently using a “no added sugars” or “without added sugars” claim would be less likely to use the claim because the amount of added sugars is stated on the label, and thus, a disclaimer with regard to the calorie content of a product would not be declared.

(Response) We do not have data or information about whether manufacturers may elect to use a voluntary nutrient content claim once they are required to declare the amount of added sugars in a serving of their product. Consequently, we also cannot determine whether consumers might be misled, so we decline to revise the rule in response to this comment.

(Comment 184) Several comments addressed additional consumer research on Nutrition Facts labels that include added sugars declarations. One comment included two reports that described methods and results of two studies, including one controlled experiment and one cross-sectional survey study, both on cranberry and other fruit products. Both studies included, among other formats of the Nutrition Facts labels, Nutrition Facts labels with declarations of the gram amount of added sugars in a serving of the product and the percent Daily Value for added sugars displayed below a “Total Sugars” declaration. Regarding Start Printed Page 33821the experiment on cranberry and other fruit products, the comment described an online study conducted in a sample of 1,448 adults age 18 or older in the United States At the start of the study, participants were shown a set of five statements, including two statements that referred to added sugars: “Americans should reduce consumption of sodium, saturated fat, refined grains and added sugars;” and “Too much added sugar in a person's diet can be bad for them and their total added sugar intake should not exceed 10 percent of their total calorie intake.”

The comment described selected results including, but not limited to, findings related to study participants who viewed a single Nutrition Facts label, in FDA's proposed format, either for cranberry juice cocktail or 100 percent grape juice. The cranberry juice cocktail label showed 110 calories, 28 grams of total sugars, and 25 grams (50 percent DV) of added sugars. The 100 percent grape juice label showed 140 calories, 36 grams of total sugars, and 0 grams (0 percent DV) of added sugars. The comment noted that when both groups of participants were asked to describe “the amount of sugar” that the product contains on a scale of 1 to 10, where 10 equaled “extremely high,” the average rating of the sugar content for the cranberry juice cocktail was statistically significantly higher than the average rating of the sugar content for the grape juice. The comment also described findings from a group of participants who viewed a single Nutrition Facts label, in FDA's proposed format, for dried cranberries, and another group of participants who viewed a single nutrition label, in FDA's proposed format, for raisins. The dried cranberries label showed130 calories, 3 grams (12 percent DV) of dietary fiber, 29 grams of total sugars, 26 grams (52 percent DV) of added sugars; 0 percent DV of vitamin D, calcium, and iron; and 1 percent DV of potassium in a serving of the product. The raisins label showed 130 calories, 2 grams (8 percent DV) of dietary fiber, 29 grams of total sugars, 0 grams (0 percent DV) of added sugars, 0 percent DV of vitamin D, 2 percent DV of calcium, 6 percent DV of iron, and 9 percent DV of potassium. The comment said that when both groups of participants were asked to describe “the amount of sugar” and “the amount of calories” that the product contains by rating each item on a scale of 1 to 10, where 10 equaled “extremely high,” the average ratings of the sugar and calorie content for the dried cranberries were statistically significantly higher than the average ratings of the sugar and calorie content for the raisins. In the same study, a subset of participants also completed a “forced choice task” in which they were shown Nutrition Facts labels for two products presented, displayed in FDA's proposed label format, side-by-side, and were asked to choose which of the two products was “better described” by eight different phrases. Some participants were shown a Nutrition Facts label for dried cranberries plus a Nutrition Facts label for raisins, both in FDA's proposed format. The report submitted in the comment said that among those who completed this task, statistically significantly more participants selected the dried cranberries as being “better described” as containing “more sugar” and “more calories,” whereas statistically significantly more participants selected the raisins as being “better described” as “healthy.”

The same comment described selected results from a cross-sectional survey study on cranberry products. The survey was conducted online in September 2015 and included 1,000 adults of 18 and over in the United States. The study participants were asked how likely they are to consume or purchase cranberry juice cocktail, apple juice, and grape juice for their household on a regular basis. Participants were then asked how strongly they agreed or disagreed with four statements: (1) “Too much added sugar in a person's diet can lead to obesity and risk of chronic health problems;” (2) “Many Americans do not meet dietary recommendations for servings of fruit;” (3) “One should reduce consumption of sodium, saturated fat, refined grains and added sugar;” and (4) “Dried fruits and fruit juices can form a nutritious part of a well-balanced diet and help provide nutrients and servings of fruit.” Participants were then shown nutrition information for three juice products, displayed in FDA's proposed label format, in a rotating order. One product was cranberry juice cocktail of which label showed 110 calories, 28 grams of total sugars, and 25 grams (50 percent DV) of added sugars. One product was grape juice of which the label showed 140 calories, 36 grams of total sugars, and 0 grams (0 percent DV) of added sugars. One product was apple juice of which the label showed 120 calories, 24 grams of total sugars, and 0 grams (0 percent DV) of added sugars. As each product label was shown, participants were asked, “How does the information on this label affect your likelihood to consume or purchase [name of juice] for your household?” The comment said that 39 percent of participants were less likely to consume or purchase the cranberry juice cocktail after viewing the FDA-proposed nutrition label, versus 29 percent for the grape juice and 18 percent for the apple juice. Participants were also asked to identify “how many grams of sugar” were in each juice. The comment said that 30 percent of participants could not answer the question correctly when viewing the label for cranberry juice cocktail, versus 7 percent for the grape juice and 7 percent for the apple juice. After answering questions about the grams of sugar in each juice, participants who indicated that they would be less likely to consume or purchase cranberry juice cocktail were asked, “Why do you say that?” The comment said that the “main reason” for most of the participants who answered this question was “sugar content.” The comment reported similar research findings for participants who viewed Nutrition Facts labels, in our proposed format, for dried cranberries versus raisins.

Based on the research findings from the two cranberry studies, the comment said that consumers misunderstood the sugar content of cranberry juice cocktail and dried cranberries, and believed that cranberry products contain more calories and more sugars and are less healthy than competitive products, when presented with FDA-proposed labels for each, both alone and as compared to competitive products. Therefore, the comment said that requiring a naturally unpalatable fruit product that has been sweetened to label the gram amount and percent DV for added sugars, in comparison with naturally sweetened fruit products labeled as having zero grams and zero percent DV for added sugars, is misleading because it implies that a sweetened unpalatable fruit with the same or fewer total calories and sugars as the naturally sweetened fruit product is less nutritious and “generally unhealthy.”

Both cranberry studies also tested an alternative label format in which the declaration of the grams and percent DV for added sugars was replaced by a double asterisk symbol on the declaration of “Total Sugars,” (instead of “Sugars”), and a footnote placed at the bottom of the label that stated, “** Total sugars include sugars added for fruit palatability.” The comment said that the alternative label format alleviated the confusion regarding the sugar content of cranberry juice cocktail compared to grape juice and the confusion regarding the sugar content of dried cranberries compared to raisins.

Another comment described a separate, online experiment that tested Start Printed Page 33822Nutrition Facts labels for fictitious products without any product identities. The study, co-sponsored by five trade associations, was conducted in October, 2015, among a sample of 2,014 U.S. adult consumers aged 18 years or older. Half of the sample saw “Control labels” that included only gram amounts of “Sugars.” The other half of the sample saw “Added Sugars labels” that featured gram amounts of added sugars and the percent Daily Value for added sugars displayed below a “Total Sugars” declaration. All participants performed two product comparison tasks. In the first product comparison task, participants who saw the “Control labels” were shown two labels side-by-side that displayed identical nutrition profiles, whereas participants who saw “Added Sugars labels” saw two labels side-by-side which were almost nutritionally identical, except that one declared 4 grams of added sugars whereas the other declared 0 grams of added sugars. All participants were asked to indicate which of the two products was: (1) The “healthier” choice and (2) the “best choice for maintaining weight.” The comment said that the results showed that compared to those who saw two “Control labels” side-by-side, participants who saw two “Added Sugars labels” side-by-side were less likely to say that the product declaring 4 grams of added sugars was equally healthy to, or equally helpful in maintaining a healthy weight as, an identical product that declared 0 grams of added sugars. In the second product comparison task, participants were shown two labels side-by-side that displayed different nutrition profiles. One product contained 190 calories, 2 grams (3 percent DV) of total fat, 37 grams (12 percent DV) of total carbohydrates, 7 grams (28 percent DV) of dietary fiber, 16 grams of total sugars, and, in the “Added Sugars labels” but not the “Control labels,” 0 grams (0 percent DV) of added sugars. The other product contained 190 calories, 3 grams (5 percent DV) of total fat, 35 grams (12 percent DV) of total carbohydrates, 10 grams (40 percent DV) of dietary fiber, 8 grams of total sugars, and, in the “Added Sugars labels” but not the “Control labels,” 8 grams (16 percent DV) of added sugars. All other nutrients were declared in identical amounts for both products. In this case, the comment said that of the participants who saw “Control labels,” 56 percent selected the product with 10 grams (40 percent DV) of dietary fiber and 8 grams of total sugars as the healthier choice, versus 32 percent of participants who saw the “Added Sugars labels.”

Many comments referenced a study that was initially submitted as a comment and report to the proposed rule and subsequently published in 2015 (Ref. 107). The report provided qualitative and quantitative results of a study conducted with 1,088 U.S. adults recruited from an online consumer panel. The report said that study participants generally did not understand the term “added sugars” and had difficulty correctly identifying the amount of “sugars” on the label when “added sugars” were declared. Some study participants perceived that products with an “Added Sugars” declaration had a higher sugar content than was actually present. The published paper of the study also said that participants were shown three Nutrition Facts labels, side-by-side, for three products that were nutritionally identical, except that two of the three labels included “Added Sugars” declarations whereas one of the three included only a “Sugars” declaration. The paper said that, when participants were asked to rank in order of descending preference which product they would buy based on the label information, 76 percent of the participants gave the highest preference to the label that included only a “Sugars” declaration.

(Response) The findings from the research submitted in the comments and from our own added sugars study suggest more limited conclusions than the comments assert. Regarding the findings that some study participants appeared to have overestimated the sugar content of the products included in the study as a result of summing total and added sugar amounts, we address this issue in our response to comment 188. Regarding the comments' assertions that the study findings demonstrate that our proposed label declaration of the percent Daily Value and grams of added sugars would “mislead” consumers based on study participants' responses to questions posed (which reflect participant perceptions), we disagree that the results support such a conclusion (see our response to comment 35).

Our consumer study on added sugars was conducted to help inform our consumer education. In particular, we were interested in better understanding how the inclusion of added sugars declarations on the Nutrition Facts label might influence consumer perceptions of various products and comprehension of the label. A consumer's belief, opinion, or previous exposure to information about added sugars and the impact added sugars may have on health may affect how a consumer may view a label with an added sugars declaration, whether the belief, opinion, or information is grounded in scientific evidence or not. These factors can influence how a consumer perceives information on a label and may result in some consumer confusion and misunderstanding, e.g., when a consumer thinks a food, which can be part of a healthy dietary pattern for the day, is not “healthful” simply because it has a certain amount of added sugars. We want to ensure, through our consumer education, that consumers understand how to include a variety of foods in their diet as part of a healthy dietary pattern and focus on providing consumers the tools they need to understand how to include added sugars in their diets and where calories from added sugars can be included within calorie limits. FDA's consumer research on added sugars suggests that in comparison to participants who saw the current label without any added sugars declarations, some study participants' perceptions of the healthfulness of a given product varied when added sugars declarations were included on the Nutrition Facts label. Specifically, the study showed that when participants compared two products that declared added sugars, and the more nutritious product had more added sugars, some participants had difficulty assessing the relative healthfulness of the more nutritious product. This variation in healthfulness perceptions suggests that, when presented with Nutrition Facts labels that included added sugars declarations, some FDA study participants may have applied their own understanding of added sugars in deciding how to evaluate this new information, relative to other, more familiar nutrients shown on the label, which may have, in turn, affected these participants' perceptions about the healthfulness of a given food. A variety of factors may account for some of the product perceptions (e.g., healthfulness of a product) found in our research, including but not necessarily limited to: (1) Dietary advice disseminated since 1980 about limiting “sugar” intake, particularly from sources of added sugars; (2) preexisting perceptions and knowledge (both correct and incorrect) about “sugars” and “added sugars;” and (3) potential confusion among some consumers about the fact that the existing “Sugars” declarations on the current Nutrition Facts label refers to the components of “sugars,” which include both naturally occurring and added sugars.

The information on the Nutrition Facts label provides consumers with Start Printed Page 33823information they need to maintain healthy dietary practices. Our consumer research on added sugars was informative with respect to the need for information about the amount of added sugars in a serving of food to enable consumers to incorporate added sugars into a healthy eating pattern. Our consumer research on added sugars demonstrated that, without the added sugars declaration, consumers will not have information they need to construct a dietary pattern that is low in added sugars. Not all consumers understand the distinction between “Sugars” and “Added Sugars,” and, therefore, some consumers do not understand that added sugars, along with naturally occurring sugars, are components of “Sugars.” We found that some study participants think a food with added sugars is less “healthful,” even though the food could be included as part of a healthy dietary pattern.

Without the factual information about the amount of added sugars in a serving of food and percent DV declaration, consumers would not be able to choose from a variety of foods for a healthy dietary pattern and would not be provided with information about appropriate limits on calories from added sugars in their diet. It is important to provide consumers with the information on the amount of added sugars in a serving of food so they can better manage their daily intake of added sugars, rather than having consumers avoid foods with added sugars in the ingredient list or conversely consume excess amounts of added sugars because they are uninformed about the contribution of added sugars in a serving of food. Information about added sugars on the nutrition label will provide material information to the consumer to better enable them to construct a healthy dietary pattern from a variety of foods.

In addition to our consumer study on added sugars, the comments provided consumer research on added sugars related to consumer perceptions. The research provided in the comments was designed to show differences in how people view added sugars on the label, but did not discuss the need for the added sugars declaration and its importance in enabling consumers to construct healthy dietary patterns. If we do not include added sugars on the label, based on how consumers may misperceive added sugars or be confused about how to include it as part of a healthy dietary pattern on intake, consumers could be harmed by not having critical information needed to maintain healthy dietary practices.

The studies submitted in comments demonstrate the same issue we have noted with respect to some consumers adding total and added sugar declarations together, which led to our revisions to the final declaration of added sugars to clarify that added sugars is a subcomponent of total sugars (“included” in total sugars). Furthermore, due to a number of deficiencies in the information provided about the cranberry studies as well as in the described study methodologies, we are not able to assess the merits of any conclusions described in the comments related to cranberry products. For example, in the cranberry experiment, one dietary statement that participants were shown at the beginning of the study about added sugars said: “Too much added sugar in a person's diet can be bad for them and their total added sugar intake should not exceed 10 percent of their total calorie intake.” A DRV for added sugars of less than 10 percent calories suggests that some added sugars can be part of a healthy diet. In fact, the food pattern modeling that was part of the basis for establishing the DRV for added sugars included 4 to 9 percent of calories from added sugars. Therefore, some study findings in the cranberry experiment may be attributable to participants having seen the negative dietary statement before evaluating the label formats tested in the study.

Additionally, it is not clear whether the cranberry experiment tested how participants would have evaluated the cranberry juice cocktail versus grape juice, or dried cranberries versus raisins when using the current Nutrition Facts label and, more importantly, the proposed Nutrition Facts label without the proposed declaration of added sugars. Without such test results, it is not possible to ascertain whether the reported results could be attributed, as the comment asserted, to the added sugars declaration or were influenced by other label elements. Moreover, although the comment said that the cranberry experiment reduced confusion with an alternative label in which the declaration of the grams and percent DV for added sugars was replaced by a footnote that stated, “** Total sugars include sugars added for fruit palatability,” based on findings from eye-tracking studies (Refs. 15, 108), we suspect that the reduced confusion is related more to participants overlooking the information in the footnote, which is located at the bottom of the label. Regardless of the findings described in the comment, the alternative label format included in the cranberry experiment would not provide consumers with essential information about the quantity of added sugars in a food or what that amount of added sugars contributes to a daily diet. Without this information, consumers will not be able to consume less added sugars or put the added sugars declaration in the context of their daily diet. Finally, although we acknowledge that the cranberry experiment showed that statistically significantly more participants selected raisins as being “better described” as “healthy” in comparison to the dried cranberries, we note that there were other differences between the dried cranberries and the raisins besides the amount of added sugars. For example, the raisins contained more protein, iron, potassium and calcium than cranberries. It is unclear from the study results if the participants solely chose raisins based on their lack of added sugars or if the increased levels of these other nutrients may have impacted the participant's choice for the “healthy” product.

In the cranberry survey study, selective reporting of the verbatim results that were used to identify the reported reasons for the decreases in purchase or consumption intentions, the absence of a baseline assessment of how participants would respond to the study questions using the current Nutrition Facts label, and the sequence and nature of the questions described preclude a determination of the extent to which the findings produced in the study are attributable to the FDA-proposed label or to added sugars declarations. For example, the cranberry survey study first asked participants to express agreement or disagreement with a statement, “Too much added sugar in a person's diet can lead to obesity and risk of chronic health problems.” Given that 91 percent of the study sample said that they strongly or somewhat agreed with this statement, it is reasonable to infer that the study participants' preconceived beliefs and/or heightened attention on added sugars may account for many of the cranberry survey study findings reported in the comment, rather than the declaration of added sugars. Given that study participants have various preconceived perceptions about added sugars, it is not surprising that participants have different purchase intentions or perceptions. Furthermore, because the cranberry survey study led participants through a sequence of questions where they answered questions about grams of sugar in the products before viewing an alternative label that was advocated by the authors of the comment, the study methods Start Printed Page 33824deliberately led participants to focus on information that they may not have naturally focused on in other circumstances, therefore calling into question whether the alternative label would produce less confusion while also producing better comprehension about the added sugars content of the tested foods if a different set or sequence of questions had been employed.

In the experiment that was co-sponsored by five trade associations, we are unable to conclude that added sugars declarations were the reason for the findings in the second product comparison task because the experimental conditions included variations in total fat and dietary fiber values, in addition to varying added sugars. For example, in the second product comparison task, in which respondents viewed “nutritionally different” products, 50 percent of participants who selected the product that declared 0 grams of added sugars as “better for maintaining healthy weight” indicated “it was low in fat” as a reason for their selection; in addition, our analysis of the raw data submitted by the commenter shows that, 36 percent indicated “has no grams of added sugars” as a reason for their selection. On the other hand, our analysis of the raw data shows that among participants who selected the product that declared 8 grams of added sugars as “better for maintaining healthy weight,” 55 percent indicated “is higher in fiber” as a reason for their selection, and 39 percent indicated “contains less sugar” as a reason. As for the findings from the first comparison task, in which participants viewed two labels that were almost nutritionally identical, we do not agree that participants “misjudged” the healthfulness or weight-related attributes of the foods in the presence of added sugars information, because the difference in added sugars content between the foods meant that the two foods were, in fact, nutritionally different. Without added sugars declarations, participants were unable to discern that such a difference existed. Similarly, in the paper by Laquatra et al., participants who expressed a purchase preference for the label that included only a “Sugars” declaration may not have understood that the food contained added sugars and may have based their preference on that mistaken understanding.

Some research referenced different approaches for the labeling of added sugars for certain nutrient-dense fruit products that are high in acid. The proposed alternative approach to added sugars labeling for dried unpalatable fruit and juices made with at least 27 percent juice of an unpalatable fruit includes a proposed definition for an unpalatable fruit. We note that there are other fruits, such as lemons and limes, which contain nutrients, but have a low Brix value. When the juices of such fruits are consumed, they typically have sugar added to them for palatability. It is not clear what the impact of this approach suggested in the comment, which includes a definition of dried unpalatable fruit as well as use of a Brix-to-acid ratio that is not defined by regulation, would have on other dried fruit products or products made from juices of other fruits that typically have sugars added to them. An alternative approach provided in comments includes the use of a footnote in the Nutrition Facts box to explain that added sugars are added to increase the palatability of the food. However, we are concerned about the use of the Nutrition Facts label to convey this type of information and the precedent such an approach may set for other possible statements related to a nutrient declared on the label, such as the purpose for its addition, and information related to the characteristics or use of the nutrient. We consider it important to maintain the consistency of the information contained within the Nutrition Facts label, which provides factual information about the amount of a nutrient in a serving of food. This ensures that consumers can continue to readily use the Nutrition Facts label to make comparisons across all packaged foods. Manufacturers who are interested in communicating, through labeling, how products made from fruits that have sugars added to them in order for the product to be acceptable to consumers are free to make a statement elsewhere on the label or in labeling, outside of the Nutrition Facts box, to explain the purpose for which the sugars has been added, provided the information is consistent with other labeling requirements, e.g., is truthful and not misleading. Thus, for example, manufacturers could include a truthful and not misleading statement explaining that total sugars include sugars added for fruit palatability.

(Comment 185) One comment described a reanalysis of the raw data from our added sugars study, the availability of which we announced in the Federal Register of September 10, 2015 (80 FR 54446). The reanalysis confirmed some of the findings reported in an FDA memo (see part II.H.3.g), but also found that participant perceptions of the products in the study were inconsistent depending on race, education level, or both. Based on the findings from the reanalysis and prior published research that has examined how nutrition label use varies with education level and ethnic minority status, the comment said that the presence of added sugars information on the label produced misperceptions and confusion, and that low-education consumers and ethnic minorities seemed especially prone to “unintended consequences” when added sugars was displayed on the label. The comment said that more research is needed to thoroughly understand how the provision of added sugars on the Nutrition Facts label would affect “at-risk segments” of the population.

(Response) We agree that some findings suggest the potential for consumer responses to labels vary depending on race, ethnicity, and education level; this type of variation has been shown in prior published research. On the other hand, because the reanalysis ventured beyond the primary objectives of what the study was designed to explore and because some findings reported in the comment were based on fewer than five participants, many findings of the reanalysis are unreliable. We also disagree with the comment's basis for asserting a need for additional research as discussed in our response to comment 40. Due to the limitations of the sample, limitations which the comment acknowledged, we view the reanalysis as exploratory and inconclusive, although potentially informative for future education efforts. Furthermore, as addressed in our responses to comments 1 and 244, we have considered, and will continue to consider, a variety of educational efforts to assist consumers in comprehending and using the Nutrition Facts label to maintain healthy dietary practices.

h. Voluntary labeling. In the preamble to the proposed rule (79 FR 11879 at 11905), we considered the appropriateness of the voluntary declaration of added sugars. However, we said that we were concerned that voluntary declaration of added sugars may not ensure that consumers have the information that will allow them to follow the current dietary recommendations (id.). We also said that added sugars declared voluntarily by manufacturers could be confusing to consumers and would not provide consumers with the information they need to plan their dietary pattern to reduce consumption of calories from added sugars (id.).

(Comment 186) Several comments disagreed with our tentative conclusion that the labeling of added sugars should be mandatory and provided a number of Start Printed Page 33825reasons why the declaration of added sugars should be voluntary rather than mandatory. Most comments suggested that labeling of added sugars should be voluntary rather than mandatory for the same reasons that they opposed mandatory labeling of added sugars. The comments, and our responses to the comments, are provided in part II.H.3.a. Other comments, which recommended that if we determine that added sugars should be declared on the label, the label declaration should be voluntary rather than mandatory, provided the following reasons:

  • One comment referred to our discussion of voluntary labeling of added sugars in the proposed rule (79 FR 11879 at 11905), and said that whether declaration of a nutrient on the Nutrition Facts label is mandatory or voluntary does not correspond to its bearing on maintaining healthy dietary practices;
  • The sole macronutrient made mandatory by regulation is trans fat due to its established relationship to risk of chronic diseases and health-related conditions;
  • Other voluntary nutrients, such as polyunsaturated fat, monounsaturated fat, potassium, soluble fiber, and sugar alcohol, are the subject of authorized health claims;
  • Executive Order 13563 requires us to consider less burdensome alternatives;
  • Consumers' understanding of the differences between added and naturally present sugars should be determined before becoming mandatory;
  • Voluntary labeling would be consistent with the labeling of added sugars in the United Kingdom, Canada, Australia, and New Zealand, and would not run afoul of the World Trade Organization's Agreement on Technical Barriers to Trade (“TBT Agreement”); and
  • Manufacturers of foods containing a significant amount of added sugars would likely be disinclined to declare added sugars if labeling is voluntary, however manufacturers of foods containing an insignificant amount of added sugars would likely use the added sugars declaration to highlight the added sugars content by juxtaposing sugars and added sugars declarations on the label.

(Response) Since the publication of the proposed rule, additional evidence has become available that further supports the need for a mandatory declaration of added sugars. The scientific evidence supports Americans limiting their calories from added sugars by consuming an eating pattern low in added sugars. We explained that consumers need to know how much added sugars is in a serving of a product in order to consume a healthy dietary pattern that is low in added sugars because we have evidence that healthy dietary patterns characterized, in part, by lower intakes of sugar-sweetened foods and beverages when compared to less healthy dietary patterns are associated with a decreased risk of CVD. We have the authority to require the declaration of a nutrient on the label if we determine the declaration will assist consumers in maintaining healthy dietary practices. Our discretion includes whether to permit the voluntary declaration or require the mandatory declaration of a nutrient (56 FR 60366, November 27, 1991).

With respect to the comment which noted that the only nutrient which has been added to the label by regulation is trans fat, which was based on its relationship to CVD risk, our basis for requiring the declaration of added sugars for the general population is not its independent association with the risk of chronic disease, a health-related condition, or a physiological endpoint. Instead, we are requiring the mandatory declaration of added sugars because evidence shows that heathy dietary patterns associated with a decreased risk of chronic disease are lower in added sugars, consumption of too much added sugars can impact the nutrient density of the diet, and consumption of sugar-sweetened beverages are associated with increased adiposity in children.

With respect to the comment that suggested that a declaration of added sugars should be voluntary because it is not the subject of an authorized health claim, our authority to add additional nutrients to the label under section 403(q) of the FD&C Act is distinct from our authority to authorize health claims.

With respect to the comment suggesting that we should consider less burdensome alternatives as directed by Executive Order 13563, we did consider voluntary labeling of added sugars in the preamble to the proposed rule (79 FR 11879 at 11905) and determined that a voluntary declaration would not provide the information consumers need to understand the relative contribution of added sugars from all food in the context of a total daily diet and achieve a healthy dietary pattern that is associated with a reduced risk of chronic disease. The 2015 DGA provides further support for this conclusion.

With respect to the comment that consumers' understanding of the differences between added and naturally present sugars should be determined before we can require the declaration of added sugars, that is not consistent with our authority for when we can require a nutrient declaration, as discussed in our response to comment 156.

Concerning the comments raised with the TBT Agreement, the comments have not explained why we would be acting inconsistently with our WTO obligations if we require the declaration of added sugars, as compared to other countries that allow for the voluntary declaration of added sugars on their labels. As we have explained, our objectives will not be fulfilled by voluntary labeling. Rather, the scientific evidence supports the mandatory disclosure of the amount of added sugars in the nutritional labeling of food. The dietary pattern of the general United States population contains excessive calories from solid fats and added sugars. The consumption of excess calories above calorie needs can lead to overweight and obesity. There is public health need to reduce excess calories from solid fats and added sugars to ensure that nutrient needs are met within calorie limits. Moreover, a healthy dietary pattern that is characterized, in part, by lower intakes of sugar-sweetened foods and beverages relative to less healthy dietary patterns is associated with a reduced risk of CVD. Thus, we have determined that there is a public health need for Americans to be able to determine the amount of added sugars in a serving of foods and to be able to put that amount into the context of their total daily diet so that they can consume a healthy dietary pattern that is lower in added sugars. We have a legitimate regulatory objective to provide nutrition information to consumers that includes the added sugars content in a serving of food to protect the health of United States consumers. The scientific evidence indicates that requiring disclosure of added sugar content is necessary to achieving this objective. We address comments related to international trade in part II.H.3.m.

We have considered the comment about the possible inclination of manufacturers to declare added sugars on their labels as a basis for determining whether to require or permit the declaration of added sugars on the label and consider the required declaration of added sugars to be necessary to assist consumers in maintaining healthy dietary practices. If consumers do not have information on the amount of added sugars in foods available in the marketplace, they will not be able to compare products so that they can avoid excess calories from added sugars and Start Printed Page 33826construct an overall healthy dietary pattern that has less than 10 percent of calories from added sugars.

i. How added sugars are declared. Many comments provided recommendations for how information about added sugars in products should be conveyed to consumers on the label.

(i) Changing “Sugars” to “Total Sugars”

In the preamble to the proposed rule (79 FR 11879 at 11902), we said that we were considering whether to use the term “Total Sugars” instead of “Sugars” on the label if we finalize a declaration of added sugars. We also said that we planned to conduct consumer research that would include, among other things, questions regarding the declaration of added sugars on the Nutrition Facts label in order to help or enhance our understanding of how consumers would comprehend and use this new information, and to inform our education activities and outreach. In the preamble to the supplemental proposed rule (80 FR 44303 at 44306), we discussed the results of our consumer research which showed that when an “Added Sugars” declaration was indented below a “Total Sugars” declaration on the label, participants appeared to be better able to comprehend the total amount of sugars in a food than if an “Added Sugars” declaration was indented below a “Sugars” declaration. In the preamble to the supplemental proposed rule (id. at 44304), we asked for comment on whether the term “Total Sugars” should be declared on the label instead of “Sugars.”

(Comment 187) Many comments to both the proposed rule and the supplemental proposed rule addressed this topic. The comments generally preferred the term “Total Sugars” rather than “Sugars” on the label. Although some comments did not support a declaration of added sugars on the label, the comments said that, if we require the declaration of added sugars in the final rule, the term “Total Sugars” should be used on the label rather than “Sugars.” The comments said that such a change to the terminology used will likely increase consumer understanding that “Added Sugars” are included in the “Total Sugars” declaration. The comments would change the “Sugars” declaration to “Total Sugars” to provide a clearer distinction between total and added sugars and to prevent consumers from adding the “Added Sugars” and “Sugars” declarations together. The comments said that this change would be consistent with the declarations for “Total Fat” and “Total carb.” Other comments suggested that using the heading “Total Sugars” would provide interpretive data that is consistent with the need to make information clearer for consumers with lower levels of health literacy, numeracy, and English language limitations. One comment said that an analysis of our research indicates that replacing the term “Sugars” with “Total Sugars” on the label will enhance the consumers' ability to discern the overall nutritional value and compare nutrient density of food products at the point of selection (Ref. 109).

Other comments provided evidence that consumer's understanding of label information about sugars is improved when the “Sugars” term is replaced with “Total Sugars.” One comment provided the results of a qualitative and quantitative study that it conducted showing that, when “Total Sugars” was declared on a label rather than “Sugars,” participants were more likely to understand that the sugars in an “Added Sugars” line would be included in a “Total Sugars” line (Ref. 107). These results are consistent with our findings. Another comment cited a study by Laquatra et al., which the comment said suggests that consumers' understanding of the amount of sugar indicated on a food label was improved when the term “total sugars” was used rather than “sugars” (Ref. 107).

One comment said that our consumer research results are ambiguous, and requested that we undertake sufficient education activities to ensure that consumers understand that “Added Sugars” are included in the “Total Sugars” declaration. Another comment also said that it is premature to comment on using the term “Total Sugars” instead of “Sugars” on the label because additional consumer research that includes a label format that represents our proposed added sugars labeling declarations (including a percent DV declaration) is needed to gauge consumer understanding and usage of the new label information.

(Response) Since the publication of the supplemental proposed rule, our finding that participants appear have better comprehension of the total amount of sugars in a food when “Sugars” is replaced with “Total Sugars” on the label has been replicated by others, as noted in some comments. We disagree that additional consumer research testing the proposed label format with a percent DV declaration for added sugars is needed before we can finalize a change to the label which replaces the term “Sugars” with “Total Sugars.” “Total Sugars” will help improve comprehension of information on the label related to total and added sugars (see part II.H.2.c). Therefore, we are replacing “Sugars” with “Total Sugars” throughout §§ 101.9 and 101.36.

(Comment 188) Many comments raised concerns about our proposal to require added sugars declarations due to findings from consumer research conducted by FDA and others. The comments said consumer research showed that added sugars declarations decreased the ability of some participants to correctly identify the quantity of total sugars in a food. Specifically, FDA's studies as well as other studies cited in the comments showed that when viewing nutrition labels with added sugars declarations, some participants mistakenly summed the value for total sugars and the value for added sugars when they were asked to identify the total amount of sugars in a serving of a product. Some comments also said that the research suggests that the proposed label is more likely than the current label to mislead or confuse consumers with regard to total grams of sugars in the product; the comments would exclude an added sugars declaration from the label. Another comment suggested that FDA should conduct additional research to find other ways to present added sugars and total sugars declarations to reduce consumer confusion.

(Response) We acknowledge that our consumer research and those referenced in the comments showed statistically significant decreases in participants' understanding of total sugars in a serving of a product when a label included an added sugars declaration, either with or without the corresponding percent Daily Value of added sugars, compared to when a label did not include an added sugars declaration. Our study showed that the most common error was for our study participants to overestimate the quantity of total sugars in the product by summing the product's “total sugars” (or just “sugars,” depending on which label format was used) and “added sugars.” We note, however, that in our study and in a study conducted by IFIC, including “total” in front of “sugars” helped study participants better comprehend the total amount of sugars in a serving of a product. Therefore, the final rule includes “total” in front of “sugars” to better enable consumers to correctly assess the quantity of total sugars in a product.

We also note that in our research, when compared to the control group viewing the current label with no “added sugars” declaration, some study participants still did not report the correct amount of “sugars” in one serving of the product, even when the Start Printed Page 33827word “total” was included in front of “sugars.” It is also important to note that when using the sugars declaration on the current label, some participants were unable to determine the total amount of sugars, even when only “sugars” was listed on the label. Additionally, our research found that the majority of study participants could not identify the correct amount of “added sugars” on the label when it was not declared, thereby not giving participants a key piece of information needed to maintain healthy dietary practices.

We plan to include “added sugars” in our consumer education and outreach efforts on the Nutrition Facts label. This will address some consumer confusion. However, to the extent some confusion was identified in the studies, we want to correct this potential confusion by adding the word “includes” in front of added sugars. The added sugars declaration will now read “Includes X g Added Sugars” below the “Total Sugars” line. The addition of “includes” will enable consumers to understand that “added sugars” are a sub-component of “total sugars.” We also are minimizing the hairline between total sugars and added sugars to help denote that “added sugars” are a subcomponent of “total sugars.” Minimizing the hairline between the two sugars will “chunk” the sugars together instead of them being distinct and separate. We base our decision on the expert opinion of two scientists in the fields of consumer research and risk communication and a review of literature as explained below surrounding the use of connecting words to clarify relationships between subject matter.

We enlisted the aid of two independent FDA experts, one whose expertise is in consumer research and the other whose expertise is in risk communication. These experts were not affiliated with our current consumer studies work on added sugars and were asked to evaluate whether using the word “includes” as well as minimizing the line between “total sugars and “added sugars” are likely to ameliorate the consumer confusion found in our consumer research as well as the research of others. The experts independently agreed that these changes should help consumers better understand that “added sugars” is a subcomponent of “total sugars” (Refs. 110-111). The consumer research expert noted that including the word “total” in front of “sugars” should be particularly helpful to regular label users since this format is consistent with what is used for “total fat” and “total carbohydrate.” The expert also suggested that use of the word “includes” should reinforce for consumers that “added sugars” is a component of “total sugars” and not merely a complement. The expert also noted that any lingering confusion with the format related to determining total amount of sugars in a serving of a product should dissipate over time as users of the Nutrition Facts label become accustomed to the new label.

The second expert in risk communication noted that the presence of the word “includes” provides clarity that she expects will reduce confusion among those consumers who summed “Added Sugars” and “Total Sugars” and allow consumers to determine the total amount of sugars in one serving of a product.

In addition to the expert opinion, some literature suggests linking terms (words or phrases that reveal relationships between ideas in content) are useful for increasing comprehension, indicating that using the word “includes” may help consumers understand that “added sugars” are a subcomponent of “total sugars.” Comprehension of information in text takes place when the reader can identify new text information and relate it to the information already given or known. The more information that coincides with what readers already know, the easier it will be for them to integrate new information into their existing knowledge base, hence coming to understand the material presented in the information (Ref. 112). One principle commonly used to facilitate comprehension is to make each sentence explicitly related to the next. One possible approach to implement this principle is to use sentence connectors to clarify relationships between sentences. Similarly, Spyridakis 1989 (Ref. 113) suggested that because comprehension of text requires readers to make inferences, a text that provides clues to the links between discrete units of information can help readers make appropriate inferences and therefore contribute to overall learning of the content of the text. There are different types of “connector” or “signal” words, phrases, or statements that preannounce content and/or reveal a relationship between ideas in content (Ref. 114). The latter, sometimes called logical connectors, can be words or phrases such as “first,” “moreover,” “because,” “for example,” and “in other words.” The literature has demonstrated that logical connectors can be helpful in improving text comprehension (Refs. 113-115). We acknowledge that text and tables are different formats of presentation, however the understanding of tabular information and understanding of textual information share similar psychological processes (Ref. 116). The literature thus lends support that a linking word such as “includes” may help consumers better comprehend that “added sugars” are a sub-component of “total sugars.”

Furthermore, in the previous final rule implementing the NLEA (57 FR 32070 at 32071), we noted that several comments suggested using terms such as “includes,” “including,” and “of which,” before the subcomponent for fats and carbohydrates to indicate that the subcomponent is a part of a broader classification. We agreed that these words would add clarity to the label but declined to include them at that time because they could “clutter” the label. While label clutter is a concern, decreasing potential consumer confusion outweighs any cluttering of the label that would result from the addition of a word before “added sugars.” We also note that the European Union, in its new nutritional labeling requirements, is requiring “of which” to help denote the sub-components of fats and carbohydrates, which is a similar linking phrase.

With regard to the comment that asked us to conduct further consumer research on this topic, we decline to do so at this time. While we may consider additional consumer research in the future to help inform consumer education regarding the “added sugars” or other declarations, we have incorporated changes intended to minimize consumer confusion regarding the “added sugars” declaration on the label and have finalized this requirement. We have sufficient information to move forward with the requirement for the added sugars declaration based on a review of the scientific evidence and other available data and information which support the need for added sugars information to be available to the consumer as part of the nutrition label.

(ii) Declaration of Added Sugars in Teaspoons

(Comment 189) While one comment said that a gram disclosure for added sugars would be more readily understood by consumers because it is consistent with the manner in which total sugars are disclosed on the label, a number of comments suggested that added sugars should be declared in teaspoons or in teaspoons as well as grams. The comments said Americans understand household measures better than they do the metric system because they use household measures at home. Start Printed Page 33828The comments said that listing the amount of added sugars in both grams and teaspoons would improve the clarity of the information provided about added sugars. The comments also suggested that a gram and teaspoon declaration for added sugars would help consumers readily observe and comprehend the information on sugars and to understand its relative significance in the context of a total daily diet.

The comments provided the results of survey data to support an added sugars declaration in teaspoons. One comment provided the results of a 2010 telephone survey which it said showed that 72 percent of respondents favored listing teaspoons of sugar on the label. Another comment referenced the results of a 2012 survey of readers by Consumer World, an Internet-based publisher of a consumer resource guide. The comment said that, when exposed to label information in which the amount of added sugars in a product was expressed in grams, up to 80 percent of survey participants could not accurately say how much sugar was contained in a product, and many participants underestimated the actual amount of sugar in the product.

(Response) We decline to revise the rule as suggested by the comments. We address issues regarding the use of household measures (such as teaspoons) in part II.B.3.

Additionally, we note that there are many ingredients that supply added sugar, so it would be difficult, if not impossible, for a manufacturer to determine the volume contribution that each ingredient provides towards the added sugars declaration. For example, a cookie made with white chocolate chips and dried fruit would have added sugars in the form of sugar in the batter as well as in the white chocolate chips and the dried fruit.

Because many products would not have amounts of added sugars in a serving of a product that would result in the declaration of an even teaspoon or multiple thereof, the requirement to declare added sugars in teaspoons rather than in grams would result in fractional declarations of teaspoons of added sugars. Indeed, under § 101.9(c)(6)(iii) of the final rule, a statement of added sugars content is not required for products that contain less than 1 gram of added sugars in a serving if no claims are made about sweeteners, sugars, or sugar alcohol content. The final rule also states that if a product contains an insignificant amount of added sugars, the added sugars content may be expressed as zero.

Additionally, the USDA Food Patterns provide limits for added sugars that can be reasonably consumed while meeting all other nutrient and food group requirements that are listed in grams rather than in teaspoons. The declaration of added sugars in teaspoons rather than in grams would make it difficult for consumers to determine how their consumption of added sugars relates to the recommended limits in the USDA Food Patterns.

There is limited space on the label, so the declaration of both gram and teaspoon amounts of added sugars on the label could cause clutter and make the label more difficult to read. We have determined that the amount of other nutrients on the label should not be declared in teaspoons, so if added sugars were declared in both grams and teaspoons, it could draw the reader's attention to the added sugars declaration and make it appear as though the information should be more important or considered in a different way than declarations of other nutrients when the declarations of other nutrients are just as important to consider when constructing a healthful dietary pattern.

While we take into consideration consumer preference, manufacturers must provide information on the label that is as accurate as possible. Although consumers may prefer the declaration of added sugars in teaspoons because household measures are more familiar to them than gram amounts, the need for accurate labeling of added sugars is of greater importance.

We have conducted our own research, and that research showed that when the gram amount of added sugars is declared on the label, study participants are able to determine the amount of added sugars in a serving of a product. Furthermore, the percent DV declaration for added sugars is also required. Therefore, we disagree that consumers are unable to determine the amount of added sugars when the gram amount is declared on the label.

(iii) Distinguishing Between Naturally Occurring and Added Sugars on the Label

(Comment 190) Some comments thought that we proposed to require both a declaration for naturally occurring and added sugars. Other comments suggested that the Nutrition Facts label include separate declarations for naturally occurring and added sugars so that consumers could clearly identify the amount of both naturally occurring and added sugars on the label.

(Response) We did not propose to require separate declarations for naturally occurring and added sugars on the label. The comments did not provide a basis upon which we can rely to support a separate declaration of naturally occurring sugars, and so we decline to revise the rule as suggested by the comments.

(Comment 191) One comment recommended that we propose a Nutrition Facts label format that clearly distinguishes added sugars from naturally occurring sugars in whole fruit and from sugars from dairy ingredients. The comment also recommended replacing “sugars” with “fruit & milk sugars”.

(Response) We address this comment in part II.H.2.

(iv) Replacing “Sugars” With “Added Sugars”

(Comment 192) Some comments would replace “Sugars” with “Added Sugars.” One comment said that foods like fruits have natural sugars in them, but when people see the amount of sugars they may think the food is bad for them.

(Response) We decline to revise the rule as suggested by the comment. The consumption of sugars continues to be associated with an increased risk of dental caries (Ref. 75); thus, a declaration of the total amount of sugars in a serving of a product continues to be necessary to assist consumers in maintaining healthy dietary practices.

(v) Distinguishing Between Different Types of Sugars or Sweeteners

(Comment 193) One comment suggested listing all sugars separately on the label.

(Response) We decline to revise the rule as suggested by the comment. There are many different kinds of sugars and ingredients containing sugars. The declaration of the amount of each type of sugar in a serving of a product would result in a very large and cluttered Nutrition Facts label. While all nutrient declarations are important to build healthy dietary patterns, current science focuses on added sugars in total rather than focusing on specific sugars. If consumers are interested in knowing whether certain sugars are in a product, specific sugars are listed in the ingredient list.

(Comment 194) One comment requested that we allow the inclusion of “nutritive sweetener” in a parenthetical after added sugars so manufacturers could identify the name of the added sugar. The comment also requested that, if the added sugar is high fructose corn syrup, we allow manufacturers to identify the percentage of fructose on the Nutrition Facts label (e.g., high fructose corn syrup-42 or high fructose Start Printed Page 33829corn syrup-55). The comment said that listing “nutritive sweetener,” the name of the added sugar, and the percentage of fructose in high fructose corn syrup is essential for the consumer to make a fully informed choice about the caloric contribution of sweeteners and the composition of ingredients in the product they are consuming.

Other comments supported the declaration of the amount of fructose in a serving of a product on the label. One comment said that the information is needed because metabolizing fructose puts an extra load on the liver. The comment suggested that adding fructose and deleting added sugars in the quantitative information would add value without adding complexity.

(Response) We decline to revise the rule as suggested by the comments. Added sugars are nutritive sweeteners, so it is not clear why “nutritive sweetener” needs to be declared in parentheses behind the words “added sugars” on the label. As previously discussed in our response to comment 193, current science focuses on added sugars in total rather than focusing on specific sugars.

(Comment 195) One comment objected to the use of the term “added sugars” because, according to the comment, it improperly combines compositionally and metabolically distinct caloric sweeteners.

(Response) We are not basing our declaration of added sugars on an independent relationship between added sugars, or different types of added sugars, and risk of chronic disease. To the extent that the comment is suggesting that different types of sugars are chemically distinct, so the term added sugars is inappropriate, there are different types of naturally occurring sugars as well as different types of carbohydrates, but we use the terms “total sugars” and “total carbohydrate” to capture all sugars and all carbohydrates respectively. Therefore, using one broad term to capture all sugars that have been added to a food is consistent with the approach that we have taken for other nutrients. Furthermore, caloric sweeteners that have been added to a food are added sugars, therefore we do not agree that it is inappropriate to use the term added sugars to include caloric sweeteners that have different chemical structures.

(vi) Warning Statements

(Comment 196) Several comments suggested that we require various warning statements on the label related to added sugars to warn consumers of the negative health effects of added sugars. One comment suggested that we require a warning statement that says “WARNING: THIS PRODUCT CONTAINS A SIGNIFICANT AMOUNT OF ADDED TEASPOONS OF SUGAR WHICH STUDIES HAVE LINKED TO OBESITY, TYPE II DIABETES, CARDIOVASCULAR DISEASE AND CERTAIN CANCERS. CONSULT YOUR PHYSICIAN ABOUT AN APPROPRIATE DIET WITH A REDUCED AMOUNT OF ADDED SUGAR.” Another comment suggested that we should require a warning label that says “IT [added sugar] IS ADDICTIVE. IT CAN LEAD TO OBESITY. OBESITY CAN LEAD TO DIABETES, HEART DISEASE, ETC.”

One comment suggested that we require, or offer an incentive for, a disclaimer about added sugars and sodium. The disclaimer would explain the health effects on the body and connections to disorders such as diabetes and hypertension. The comment said that, similar to cigarette packets, consumers should be warned of the health effects of added sugars.

(Response) We decline to revise the rule as suggested by the comments. The statements are not consistent with our review of the evidence (see our response to comments 136 and 137), and we do not require warning labels or disclaimers for other nutrients on the label. Furthermore, some added sugars can be included as part of a healthy dietary pattern.

(Comment 197) Several comments suggested that we use wording to convey that the DRV of 10 percent of calories from added sugars is a maximum amount rather than a recommended amount. One comment would include language to state that “no consumption is recommended. But if you choose to consume, then this absolute maximum should be observed to avoid increasing adverse health exposure.” Another comment would require a statement on the label that the average woman should consume no more than 24 grams of sugar per day, and the average man should consume no more than 34 grams of sugar per day.

(Response) We decline to revise the rule as suggested by the comments. In response to the comment that would include language to convey that the DRV is a maximum amount rather than a recommended amount, such language would not be appropriate because we do not require this information for other nutrients with DRVs or RDIs that are based on an amount not to exceed.

As for a statement regarding “no consumption,” the current evidence does not support a need to eliminate all added sugars from the diet. In fact, the USDA Food Patterns show that one can carefully construct a healthful diet that includes calories from added sugars.

Finally, regarding a statement on the label with limits for the amount of added sugars that the average man or woman should consume, we do not provide this information for any other nutrients which are to be limited in the diet, and it is not clear what the scientific basis is for the suggested limits.

j. Variability in sugar content.

(Comment 198) One comment noted that manufacturers may add varying amounts of sugars due to variation in maturity of a fruit or vegetable ingredient during the course of a growing season to attain a consistent level of soluble solids and a consistent taste profile of the food. The comment further said that food manufacturers and marketers would not prepare multiple labels for different batches, so the declared amount would reflect the highest possible amount of added sugars and may overstate the actual amount.

(Response) Variation in the sugar content of fruits and vegetables due to growing conditions is something that manufacturers have had to take into account with their labeling of total sugars since 1993. Manufacturers are in the best position to determine how much of a nutrient is in their product given the variability of the nutrients in their product. They are also in the best position to determine when a label change is needed because the declaration would no longer be in compliance with our requirements under § 101.9(g).

k. Non-enzymatic browning and fermentation. In the preamble to the proposed rule (79 FR 11879 at 11906), we recognized that sugars in some foods may undergo changes mediated by chemical reactions from non-enzymatic browning (i.e. Maillard reaction and caramelization) and fermentation that would result in compounds that are no longer recognizable or detectable as sugars through conventional analytical methods. We tentatively concluded that the amount of added sugars transformed during non-enzymatic browning reactions is insignificant relative to the initial levels of sugars. We also tentatively concluded based on the information available to us that the amount of added sugars present in foods prior to undergoing fermentation, with the exception of yeast-leavened bakery products, wines with less than 7 percent alcohol by volume, and beers that do not meet the definition of a “malt beverage” as defined by the Federal Alcohol Administration Act (27 U.S.C. 211(a)(7)) with sugars added during the formation process, will not be Start Printed Page 33830significantly affected by virtue of the food having undergone fermentation (79 FR 11879 at 11907). We acknowledged that we do not have adequate information to assess the degradation of added sugars during fermentation for yeast-leavened bakery products, wine with less than 7 percent alcohol by volume, and beers that do not meet the definition of a malt beverage with sugars added before fermentation. We requested the submission of available data and information on our tentative conclusions as well as the submission of data on the amount of variability that occurs among various types of products where added sugars are transformed into other compounds as a result of chemical reactions during food processing.

The proposed rule, at § 101.9(g)(10)(v), would require a manufacturer of yeast-leavened bakery products, wines with less than 7 percent alcohol by volume, and beers that do not meet the definition of a malt beverage with sugars added before and during the fermentation process to make and keep records of added sugars necessary to determine the amount of added sugars present in the finished food. The proposed rule would require manufacturers of such foods to make and keep records of all relevant scientific data and information relied upon by the manufacturer that demonstrates the amount of added sugars in the food after fermentation and a narrative explaining why the data and information are sufficient to demonstrate the amount of added sugars declared in the finished food, provided the data and information used is specific to the type of fermented food manufactured. Alternatively, under the proposed rule, manufacturers would be able to make and keep records of the amount of added sugars added to the food before and during the processing of the food and, if packaged as a separate ingredient, as packaged. We said that the amount of added sugars declared should not exceed the amount of total sugars on the label (79 FR 11879 at 11908).

(Comment 199) One comment said that we have not demonstrated why distinguishing between a fermented added sugar and a fermented naturally occurring sugar or why the type of sugar that participates in reactions due to heat treatment improves the health of consumers. The comment questioned what the compelling government interest is in knowing which molecule of sugar participates in these reactions.

(Response) To the extent that the comment is suggesting that our focus on added sugars is misplaced because added sugars are not chemically distinct from naturally occurring sugars and are not associated with health or the risk of disease, we respond to such issues in part II.H.3.i. We also have stated, in part II.H.3.a, that added sugars consumption is a significant public health concern which warrants mandatory declaration.

(Comment 200) Several comments suggested that there are a wide variety of fermented foods (e.g., fermented vegetables, beverages, fruits, condiments, products made with grains and/or pulses, dairy replacement products, and meat products) and ingredients (e.g., vinegars, enzymes, vitamins, and amino acids in pure form or in mixtures) to which sugars are added, and where the sugars content is significantly diminished or entirely removed through fermentation. The comments also disagreed with our tentative conclusion that the amount of added sugars transformed by fermentation will be insignificant relative to the initial levels of sugars in foods and ingredients other than yeast-leavened bakery products, wines with less than 7 percent alcohol by volume, and beers that do not meet the definition of a malt beverage. The comments noted that the effect of fermentation is variable. According to the comments, the net effect can depend on details of the starting materials, fermentation process, and length of fermentation.

Several comments noted that there are many processing and ingredient variables that influence the fermentation process in yeast-leavened bakery products. The comments said that our assumption that manufacturers have information about reduction of added sugars in yeast-leavened bakery products is incorrect. One comment stated that, because manufacturers would be unable to determine the amount of added sugars consumed during fermentation in yeast-leavened bakery products, manufacturers would have to declare the amount of sugars added before leavening under the proposed rule, resulting in an overstatement of the amount of added sugars in the finished product, which is false and misleading.

Other comments suggested that added sugars that are converted through fermentation to other compounds should be subtracted from the added sugars declaration, and any sugars produced during fermentation should be omitted from the declaration of added sugars.

One comment suggested that proposed § 101.9(g)(10)(v), which would permit manufacturers of yeast-leavened bakery products, wines with less than 7 percent alcohol by volume, and beers that do not meet the definition of a malt beverage to make and keep records of scientific data and information to demonstrate the amount of added sugars remaining in the finished food, when that amount is less than the initial amount of added sugars, be extended to all food manufacturers that must declare added sugars in the labeling of their products.

Other comments disagreed with our tentative conclusion that the amount of added sugars transformed by non-enzymatic browning reactions will be insignificant relative to the initial levels of sugars. One comment provided the example of the manufacture of caramel. The comment suggested that this process converts sugars into thousands of new chemical compounds that include oligomers, dehydration and hydration products, disproportionation products, and colored aromatic products. The comment noted that the decrease in added sugars in a wide variety of products undergoing such chemical reactions may depend on the ingredients, moisture levels, presence of acids or bases, exposure to heat, etc., but that the decrease is not uniformly insignificant.

(Response) Although comments said that the amount of added sugars converted to other compounds during fermentation and non-enzymatic browning is significant in a wide variety of foods, few comments provided data to support their conclusions. One comment provided information about the amount of sugars which are converted to other compounds in kimchi, a fermented vegetable product (Refs. 117-118). Another comment provided information about caramel candy (Ref. 119). In a memo to the file for the proposed rule (Ref. 120), we tentatively concluded that the amount of added sugars which are converted to other compounds through Maillard browning, a type of non-enzymatic browning, is insignificant. Although the comments generally disagreed with our conclusion that all products participating in non-enzymatic browning have an insignificant reduction in the amount of added sugars, no comments specifically disagreed with our conclusion about products that participate in Maillard browning. Therefore, in products affected by Maillard browning, the amount of sugars added before Maillard browning is a reasonable approximation of the amount of added sugars in the finished product in most, if not all, products.

With the exception of the comment which cited caramelization as an Start Printed Page 33831example of a non-enzymatic browning process where the reduction in the amount of added sugars present in a finished food could be significant, we did not receive any other specific data or information about foods that undergo non-enzymatic browning to support the comments' position that the amount of added sugars converted to other compounds is significant. Therefore, we expect that the amount of sugars added before non-enzymatic browning in these foods would be a reasonable approximation of the amount of added sugars in the finished product. We also expect that manufacturers of such products would be able to make and keep documentation to show a reasonable basis for how they determined the declared value for added sugars.

We recognize that there may be a larger amount of variability in fermented products with respect to the amount of added sugars that are converted to other compounds. Although the comments provided examples of products that participate in fermentation, the comments provided very little data or information to support the assertion that the added sugars content is significantly reduced in a large number of fermented foods. We are aware of only a small number of fermented foods where the reduction in added sugars may significant (where the reduction in added sugars after fermentation may be significant enough to impact the label declaration for added sugars) after fermentation. Therefore, we expect that the majority of manufacturers would be able to use the amount of added sugars added as an ingredient as a reasonable approximation of the amount of added sugars in a serving of their product.

If a manufacturer has a basis on which to support a declaration of added sugars based on the amount of added sugars present in a food after non-enzymatic browning or fermentation, the label declaration must be supported by records demonstrating the accuracy of the declared amount. The records should include all relevant scientific data and information relied upon by the manufacturer that demonstrates the amount of added sugars in the food after non-enzymatic browning and/or fermentation and a narrative explaining why the data and information are sufficient to demonstrate the amount of added sugars declared in the finished food.

There may be a small number of foods which undergo non-enzymatic browning and/or fermentation for which manufacturers have reason to believe that the amount of added sugars in a serving of the finished food product is significantly less (i.e., where the reduction in added sugars after fermentation may be significant enough to impact the label declaration for added sugars) than the amount added prior to non-enzymatic browning and/or fermentation, and the manufacturer has no way to reasonably approximate the amount of added sugars in a serving of the finished food. Therefore, we have revised § 101.9(g)(10)(v)(C) to state that manufacturers may submit a petition, under § 10.30 (21 CFR 10.30), to request an alternative means of compliance. The petition must provide scientific data or other information for why the amount of added sugars in a serving of the product is likely to have a significant reduction in added sugars compared to the amount added prior to non-enzymatic browning and/or fermentation. A significant reduction would be where reduction in added sugars after non-enzymatic browning and/or fermentation may be significant enough to impact the label declaration for added sugars by an amount that exceeds the reasonable deficiency acceptable within current good manufacturing practice under § 101.9(g)(6). In addition, the scientific data or other information must include the reason that the manufacturer is unable to determine a reasonable approximation of the amount of added sugars in a serving of their finished product and a description of the process that they used to come to that conclusion.

We recognize that labeling of added sugars in products that undergo fermentation and non-enzymatic browning may not be exact, but manufacturers of most products that participate in these reactions should be able to provide a reasonable approximation of the amount of added sugars in a serving of their product based on information in the literature and their own analyses. Most manufacturers should be able to provide documentation to support the value that they declare on the label. Therefore, the majority of manufacturers of such foods will be able to provide a reasonable approximation of the amount of added sugars in a serving of their product as well as documentation showing a reasonable basis for how they determined the declared value.

As some comments recommended, we agree that it is appropriate to allow manufacturers of all products which undergo non-enzymatic browning and/or fermentation to make and keep records of the type that we proposed. Therefore, we have revised § 101.9(g)(v) to say that when the amount of sugars added to food products is reduced through non-enzymatic browning and/or fermentation, manufacturers must:

  • Make and keep records of all relevant scientific data and information relied upon by the manufacturer that demonstrates the amount of added sugars in the food after non-enzymatic browning and/or fermentation and a narrative explaining why the data and information are sufficient to demonstrate the amount of added sugars declared in the finished food, provided the data and information used is specific to the type of food manufactured; or
  • Make and keep records of the amount of sugars added to the food before and during the processing of the food, and if packaged as a separate ingredient, as packaged (whether as part of a package containing one or more ingredients or packaged as a single ingredient) and in no event shall the amount of added sugars declared exceed the amount of total sugars on the label; or
  • Submit a petition, under § 10.30, to request an alternative means of compliance. The petition must provide scientific data or other information for why the amount of added sugars in a serving of the product is likely to have a significant reduction in added sugars compared to the amount added prior to non-enzymatic browning and/or fermentation.

A significant reduction would be where reduction in added sugars after non-enzymatic browning and/or fermentation may be significant enough to impact the label declaration for added sugars by an amount that exceeds the reasonable deficiency acceptable within current good manufacturing practice under § 101.9(g)(6). In addition, the scientific data or other information must include the reason that the manufacturer is unable to determine a reasonable approximation of the amount of added sugars in a serving of their finished product and a description of the process that they used to come to that conclusion.

(Comment 201) One comment noted that sugar content of products can be increased through hydrolysis and enzymatic reactions using carbohydrate containing ingredients. The comment questioned what the classification would be of the sugars (natural or added) produced by such reactions during food processing. The comment also noted that the possibility of having sugars produced “in situ” (meaning in place or in position) shows the difficulty of drawing a clear line between the two types of sugars.

(Response) Sugars content can be increased through acid, heat, or Start Printed Page 33832enzymatic hydrolysis of complex carbohydrates (e.g. starch). Sometimes, the increase is incidental as a consequence of other food manufacturing processes, such as acidification, heating, and/or fermentation. For example, during yeast bread fermentation, natural enzymes present in the flour can hydrolyze starch into maltose. Other than sugar syrup types of products where the sugars are specifically and purposely produced via hydrolysis, we do not have information suggesting that sugars produced through incidental hydrolysis of complex carbohydrates results in a significant increase in the sugar content of foods. Sugars which are produced through incidental hydrolysis would be captured in the total sugars declaration, but we do not have any comments or other information suggesting that these sugars should be captured under the added sugars declaration. Therefore, they are not included in our definition of added sugars and would not be declared as added sugars on the label. In the previous example of the enzymatic hydrolysis of maltose from starch during bread fermentation, we would not require the maltose formed during this process to be declared as added sugar. However, sugar present in corn syrup produced from hydrolysis of corn starch would be considered added sugar because the hydrolysis was specifically done to generate mono- and di-glycerides. In addition, if a manufacturer purposely employs a hydrolysis step as part of a food manufacturing process to increase the sugar content of a food product (e.g. enzymatic hydrolysis of corn starch to make corn syrup in the same facility as part of the cookie-making process), we would consider the sugar generated from the hydrolysis step to be added sugars, since hydrolysis was purposely used by the manufacturer to increase the sugar content of the product.

l. Impact on nutrient databases.

(Comment 202) One comment said that we failed to provide a framework and/or an approved database that harmonizes implementation across industry. The comment also said that it is unclear how FDA-approved databases would be revised in order to be used to calculate added sugars or to distinguish between amounts of naturally occurring sugars and added sugars, such as how to calculate the varying sugar content of a food that contains naturally occurring and added sugars given the common fluctuations in foods containing naturally occurring sugars.

(Response) Under § 101.9(g)(8), we allow for compliance with § 101.9(g)(1) through (g)(6) by use of an FDA approved database that has been computed following FDA guideline procedures and where food samples have been handled in accordance with current GMPs to prevent nutrition loss. Our Guidance for Industry: Nutrition Labeling Manual—A Guide for Developing and using Data Bases, the manual provides generic instructions for developing and preparing an acceptable database, as well as the recommended statistical methodology to develop nutrition label values. The guide is based on doing laboratory analyses of food samples. Because added sugars and naturally occurring sugars are not chemically distinct, it is not possible to do a laboratory analysis to determine the amount of added sugars in a product that contains both naturally occurring sugars and added sugars. If a product contains only added sugars, the procedures outlined in our guidance could be used by manufacturers to develop a database of values for added sugars. However, if both naturally occurring and added sugars are present, manufacturers will have to use other information that they have to determine a label value. They will also have to make and keep records to support the declared value, as discussed in part II.H.3.p.

With respect to calculating the varying sugar content of foods that contain naturally occurring and added sugars given seasonal variability and variability due to other growing conditions in products containing naturally occurring sugars, such as fruits and vegetables, manufacturers should know how much sugars they add to a product to account for the variability in the sugars naturally present in a food. They should be able to use the amount that they add to determine the value that they declare on the label. The variability in naturally occurring sugar content would not be a new variable for manufacturers to consider.

m. International labeling guidelines.

(Comment 203) Some comments noted that Codex Alimentarius Guidelines on Nutrition Labeling require the labeling of total, but not added sugars (Ref. 121). The comments said that our proposal to require the mandatory declaration of added sugars is not in line with international guidelines on nutrition labeling. The comments said that a revision of the Guidelines was undertaken by a working group within the Codex Committee on Food Labeling (CCFL) and discussed at the 38th Session of the CCFL (2010). The comments also said that, based on reports from that CCFL meeting, the Codex Committee considered the following evidentiary support for labeling only total sugars: (1) The body cannot differentiate between added sugars and total sugars in physiologic response; (2) the absence of any analytical differentiation between added and inherent sugars, which would create difficulties for enforcement; and (3) the importance of declaration of total sugars for certain populations including diabetics. The comment also said that the WHO advised that “total sugars is the only practical way of labeling the sugars content of food since sugars cannot be distinguished analytically from intrinsic sugars.”

Other comments said that no other country has adopted mandatory added sugars declarations as part of nutrition labeling of foods and beverages. The comments noted that the purpose of the Codex Guidelines on Nutrition Labeling is to promote fair trade through international harmonization in the approach to nutrition labeling.

Other comments said that we need to be in compliance with the TBT Agreement, which insures that technical regulations “do not create unnecessary obstacles to international trade.”

Some comments referred to previous positions that we have taken with respect to Codex and said that our proposal to require the mandatory declaration of added sugars is a total reversal from those previous positions.

(Response) The Codex standards are recommendations for voluntary application by countries. For nutrition labeling, the Codex Guidelines on Nutrition Labeling provide that where a nutrient declaration is applied, the declaration of total sugars should be mandatory. Although Codex does not state or imply that the declaration of added sugars should be mandatory, the guidelines provide for mandatory declaration when “The amount of any other nutrient [is] considered to be relevant for maintaining a good nutritional status, as required by national legislation or national dietary guidelines.” ((Ref. 121) at section 3.2.1.4). We have determined that the declaration of added sugars in necessary to assist consumers in maintaining healthy dietary practices, consistent with our authority in section 403(q) of the FD&C Act for when the labeling of a nutrient is required. The provision of such information is necessary to achieve our legitimate objective of protecting human health. We have established elsewhere in this section that the mandatory declaration of the amount of added sugars in a serving of a product is necessary to protect human health because scientific evidence supports that healthy dietary patterns Start Printed Page 33833characterized, in part, by lower intakes of added sugars are associated with a decreased risk of CVD, sugar-sweetened beverage consumption is associated with adiposity in children, added sugars can lead to displacement of nutrient-dense foods in the diet, and intake data shows that Americans, on average, are exceeding the recommended limit for added sugars consumption. As such, our requirements to include the declaration of added sugars in nutrition labeling and for manufacturers to make and keep records of the amount of sugars they add to their products do not constitute an unnecessary obstacle to trade. Firms, whether domestic or foreign, must include an added sugars declaration on the label and must make and keep records, as appropriate, to verify the amount of added sugars in a product.

Manufacturers already know how much sugar is added to their product based on the formulation or should be able to reasonably estimate the amount of sugars added in products that undergo non-enzymatic browning and fermentation. We also do not consider that the records we are requiring would be unnecessarily burdensome for manufacturers to make and keep (see part II.C.1).

Our position on requiring the labeling of added sugars has developed in response to additional information that we did not have in the past. At the time that previous statements with respect to our official position on labeling of added sugars were made, the 2010 DGA and 2015 DGAC Report were not yet available. Based on information provided in the 2010 DGA and the 2015 DGAC Report, such as the underlying evidence used to support the 2015 DGAC conclusion that there is strong evidence that healthy dietary patterns characterized, in part, by lower intakes of sugar-sweetened foods or beverages are associated with a decreased risk of CVD and evidence that it is difficult to meet nutrient needs within calorie limits when individuals consume large amounts of added sugars, we had reason to revisit the requirement for a declaration of added sugars on the Nutrition and Supplement Facts labels in the proposed rule and in the supplemental proposed rule. We considered comments to the proposed rule and the supplemental proposed rule and have concluded that the evidence supports the mandatory declaration of added sugars on the label to fulfill the legitimate objective of protecting human health.

With respect to the comments that suggest no other country has adopted mandatory labeling of added sugars, we note that the comments do not address the relevance of these circumstances with respect to our objectives and the scientific evidence before us.

With respect to the comments on the evidentiary support considered by the CCFL on the reporting of added sugars, we have addressed these points in response to comments in this final rule. Furthermore, we require records, as appropriate, to verify the declaration of added sugars, and do not rely on analytical methods, as addressed by the WHO. In the six years since that decision, the evidence that has developed indicates that reporting of added sugars is of clear benefit in terms of public health.

n. Definition of added sugars. Added sugars are not currently defined by regulation. We proposed to define added sugars in § 101.9(c)(6)(iii) as sugars that are either added during the processing of foods, or are packaged as such, and include sugars (free, mono- and disaccharides), syrups, naturally occurring sugars that are isolated from a whole food and concentrated so that sugar is the primary component (e.g. fruit juice concentrates), and other caloric sweeteners. We also clarified in preamble to the proposed rule (79 FR 11879 at 11906) that the definition would include single ingredient foods such as individually packaged table sugar, and that sugar alcohols are not considered to be added sugars. We provided the following examples of names for added sugars: Brown sugar, corn sweetener, corn syrup, dextrose, fructose, fruit juice concentrates, glucose, high-fructose corn syrup, honey, invert sugar, lactose, maltose, malt sugar, molasses, raw sugar, turbinado, sugar, trehalose, and sucrose. We note that this is not an exhaustive list of all added sugars.

Although some comments supported the proposed definition, other comments said that the proposed definition is ambiguous, confusing, and will lead to inconsistent application across the food industry. As discussed in the following responses to comments on the definition of added sugars, the final rule revises the definition of added sugars in § 101.9(c)(6)(iii) that is specific and provides clarity on issues raised in the comments. As such, the definition of added sugars can be applied by the food industry in a consistent manner.

(i) Fruit and Vegetable Juice Concentrates

(Comment 204) Many comments related to the inclusion of juices and juice concentrates in the definition of added sugars. Some comments suggested that the definition include sugars from fruit juice as well as fruit juice concentrate. However, many other comments disagreed with the inclusion of both fruit juices and fruit juice concentrates in the definition of added sugars. The comments said that 100 percent fruit juices, and 100 percent juice reconstituted from concentrate should not be considered to be added sugars. The comments suggested that fruit juice concentrates should be considered an added sugar only if they are not brought back to single strength by dilution with water in the product or by the end-user. One comment stated that 100 percent juice from concentrate and 100 percent juice not from concentrate are nutritionally identical, and there is no reason to require declaration of the added sugar content differently. One comment questioned why we are proposing to require different labeling for fruit juice depending upon whether it is a stand-alone product or an ingredient in another product. Another comment stated that a juice product formulated with juice that is reconstituted from a juice concentrate would appear as if it is making a greater calorie contribution because the juice concentrate would be deemed an “added sugar” when in fact, the calorie contribution of these two products is exactly the same. The comments argued that, if a juice product is sweetened with added sugars, the underlying juice before sweetening should not be considered an added sugar.

(Response) Single strength or 100 percent fruit juices (which, for purposes of this document, we will refer to collectively as 100 percent fruit juice) contribute calories from sugars as well as nutrients. The comments did not provide data or other information to demonstrate that exclusion of information on sugars from fruit juices would be scientifically unjustified, potentially disadvantageous for consumers, and inconsistent with growing expert opinion and international approach. We note that sugars from 100 percent fruit juices have never been considered to be added sugars in the DGA. In fact, the USDA Food Patterns include 100 percent fruit juices in the fruit group, and the DGA has recommended increased consumption of fruits for many years (Refs. 28, 30, 78-83). It was not our intent to include the sugars from 100 percent fruit and vegetable juices in the definition of added sugars in the proposed rule. Therefore, the final rule does not include 100 percent fruit or vegetable juices in the added sugars definition.

While fruit or vegetable juice concentrates can supply the same Start Printed Page 33834nutrients as single strength or 100 percent fruit juice, they are a highly concentrated source of sugar. They may be used in small quantities for purposes other than to sweeten a food; however they are increasingly added to foods for sweetening purposes. They are identified in the ingredient list as concentrated fruit or vegetable juice. Some consumers could assume that the sugars that a concentrated fruit or vegetable juice contributes to a product are beneficial because they come from fruits or vegetables rather than from a more refined source. While foods sweetened with concentrated fruit or vegetable juices can be a part of a healthful diet, the sugars contributed by the concentrated fruit or vegetable juice provide additional calories to a product just as another source of refined sugar would provide additional calories. Over the course of the day, small amounts of calories in sugar-sweetened foods and beverages can add up and can make it difficult to balance the amount of calories consumed with the amount of calories expended. We consider foods sweetened with concentrated fruit or vegetable juices to be sugar-sweetened foods. The 2015 DGAC concluded that healthy dietary patterns characterized, in part, by lower intakes of sugar-sweetened foods and beverages are associated with a reduced risk of CVD. Therefore, it is important for consumers to be aware that when products are sweetened with concentrated fruit or vegetable juices; the extra sugars and calories that they contribute to products are like any other source of added sugars. When added to foods for the purpose of sweetening, we consider the sugars in a fruit juice concentrated which are used for sweetening purposes to be added sugars.

We recognize that juice concentrates may be added to food products in varying levels of concentration. For example, a product may use juice concentrate as an ingredient to achieve equivalent juice percentage as discussed in this section (e.g. a juice drink with 50 percent juice) or at 100 percent juice (e.g. 100 percent juice, from concentrate) based on our juice percentage declaration regulation in § 101.30 (also see our response to comment 205). An applesauce may have concentrated fruit juice added which has not been reconstituted at all. Because the nutrient profiles of fruit juice concentrates are the same as 100 percent fruit juices, we consider the amount of sugars above and beyond what would be contributed by the same volume of the same type of juice which is reconstituted to 100 percent juice to be added sugars. For example, if 15 grams of concentrated apple juice, which has 6 grams of sugars, is added to sweeten an applesauce and the same amount (15 grams) of 100 percent apple juice contains 1.7 gram of sugar, we would consider 4.3 grams of the sugars contributed to the applesauce (6 grams sugar in 15 grams apple juice concentrate 1.7 gram sugar in 15 grams 100 percent apple juice = 4.3 grams added sugars) by the apple juice concentrate to be added sugars. Another example to consider is an apple juice concentrate added to 100 percent pear juice for the purposes of sweetening. If 30 grams of apple juice concentrate, which contributes 10 grams of sugars is present in a serving of the finished product, the amount of added sugars which should be declared can be calculated by subtracting the amount of sugars present in 30 grams of 100 percent apple juice (3.4 grams) from the amount of sugars present in 30 grams of the fruit juice concentrate (10 grams of sugar in 30 grams apple juice concentrate 3.4 grams sugar in 30 grams 100 percent apple juice = 6.6 grams added sugars).

Fruit juice concentrates made from 100 percent juice that are sold directly to consumers (e.g. in grocery stores or on the Internet) are typically reconstituted with water by consumers before consumption. The packaging of these fruit juice concentrates typically provides information about the amount of water that consumers should use to reconstitute the juice. Concentrated juice products must bear a percentage juice declaration and that declaration may not be greater than 100 percent (Ref. 122). The label may explain that when the product is diluted according to label directions, the product yields a “__ percent juice from concentrate,” with the blank being filled in with the correct percentage based on the Brix values set out in 21 CFR 101.30(h)(1), as applicable (Ref. 122). We expect that consumers will reconstitute these types of fruit juice concentrates to 100 percent juice based on the instructions provided on the label for reconstituting frozen fruit juice. Therefore, we do not consider 100 percent juice concentrate sold directly to consumers as added sugar.

Accordingly, we have revised the definition of added sugars to exclude frozen fruit juice concentrates from 100 percent juice and to include only additional sugars contributed by fruit juice concentrates not reconstituted to full strength to be declared on the label. This approach is consistent with our position that only the amount of sugar which is above and beyond what would be expected in the same type of 100 percent juice is considered added sugar. However, concentrated juice cocktails, drinks, or beverages do not reconstitute to 100 percent juice and often contain sweeteners, such as sugar and syrup. For these types of products, all sugar except the sugar from the juice ingredients should be declared as added sugar on the label.

We note that we are also excluding fruit juice concentrates which are used to formulate the fruit component of jellies, jams, or preserves in accordance with the standard of identities set forth in § 150.140 and § 150.160 as discussed in our response to comment 211.

As for juice concentrates, juice concentrates may be added for many different purposes and they may have multiple functions in a food. For example, an orange juice concentrate could be added to a muffin batter to give it orange flavor, to add vitamin C, and to provide sweetness. If one purpose of adding the juice concentrate to a product is to provide sweetness, manufacturers should declare the amount of sugar provided from the juice which is in excess of what would be provided from the same volume of the same type of 100 percent juice as added sugars on the label.

We are aware that there are syrup-like products made by concentrating fruit juice that has been processed specifically to remove organic acid, minerals, and insoluble fruit materials. These types of products are not fruit juice concentrates, but are fruit syrups. All of the sugar contents in these types of ingredients should be declared as added sugars on the label.

We proposed to require manufacturers to make and keep records to verify the amount of added sugars in a serving of a product when the product contains both naturally occurring and added sugars. If a juice concentrate is added to a food and is not brought back to 100 percent juice, we are unable to determine how much of the sugars provided by the juice is in excess of what would be expected for the same volume of the same type of 100 percent juice, therefore, manufacturers of such products must include a calculation of how they determined the amount of sugars from the juice concentrate that contribute to the added sugars declaration. Because juice concentrates contain naturally occurring sugars, all manufacturers of products containing juices that are not brought back to 100 percent strength in the finished food must make and keep records to verify how they arrived at their determination of the amount of added sugars which are contributed by the concentrated juice.Start Printed Page 33835

(Comment 205) Some comments noted that juice concentrates are commonly used to adjust the Brix levels of directly expressed juice, and these juice concentrates are not required to be reflected in the common or usual name of such juices under the regulation for beverages that contain fruit or vegetable juice (§ 102.33(g)(2)). The comments said that fruit juice concentrates are not added sugars if they qualify to be included in the percent juice declaration found on beverage labels. The comments asked us to clarify that added sugars do not include fruit or vegetable juice concentrates used to formulate 100 percent juice or 100 percent juice blends, or dilute juice beverages, and do not include juice concentrates that are added to juices and dilute juice beverages to adjust soluble solids content in accordance with § 102.33 (21 CFR 102.33) and the standards of identity in parts 146 and 156 (21 CFR parts 146 and 156).

(Response) We do allow for the use of juice concentrates in the formulation of 100 percent juice, 100 percent juice blends, and diluted juice beverages under § 101.30 (percentage juice declaration for foods purporting to be beverages that contain fruit or vegetable juice), § 102.33 (beverages that contain fruit or vegetable juices), part 146 (requirements for specific standardized canned fruit juices and beverage), and part 156 (vegetable juices). For consistency with our current regulations, we agree that juice concentrates should be exempt from the definition of added sugars if they are: (1) Counted towards percentage juice declaration in accordance with § 101.30 for 100 percent juice and juice beverages (§ 102.33); and (2) used to standardize the Brix values of a single species juice consisting juice directly expressed from a fruit or vegetable in accordance with § 102.33(g)(2). Therefore, we have revised the definition of added sugars to make an exception for juice concentrates which contribute to the percentage juice label declaration under § 101.30 and for Brix value standardization under § 102.33(g)(2).

(Comment 206) One comment noted that, under the proposed definition for added sugars, a fruit juice concentrate that is 45 percent sugar, 50 percent water, and 5 percent other components would not be considered an added sugar because sugar would not be the primary component. The comment said that this is a potential loophole that manufacturers could exploit.

(Response) The comment is referencing the language in our proposed added sugars definition which would state that “naturally occurring sugars that are isolated from a whole food and concentrated so that sugar is the primary component (e.g., fruit juice concentrates)” are added sugars. We recognize that there could be fruit juice concentrates that do not have sugar as the primary component. Therefore, we have revised the definition of added sugars to remove the language regarding naturally occurring sugars that are isolated from a whole food and concentrated so that sugar is the primary component (e.g., fruit juice concentrates), and instead specifically listing the types of fruit juice concentrates that we consider to be added sugars.

(ii) Intended Purpose of Sweetening

(Comment 207) Many comments argued that sugars are an ingredient which may have multiple functions in a food. The comments recommended that we exclude certain ingredients which are not added for the intended purpose of sweetening a food. Most comments suggested defining added sugars based on the intended use of the sugar which has been added and not exclusively on the nature of the product. The comments would define added sugars as the sum of all mono- and disaccharides that are added to a food for purposes of sweetening the food.

Other comments said that, even when added as an ingredient in foods (as opposed to beverages), fruit juice concentrates are not always used for a sweetening purpose. One comment stated that apple juice concentrates can be added to produce a browning color as the food is heated and the sugars in the concentrate are caramelized. Many yogurt manufacturers, for example, use small amounts of fruit juice concentrates (such as carrot juice concentrate) in their yogurt products for purposes of coloring or flavoring. The comments suggested that fruit juice concentrates which are not used to sweeten a food not be counted as “added sugars” given that they: (1) Are not being used as a sweetener; (2) do not materially sweeten the product when used in the amounts necessary for their intended purpose of coloring or flavoring; and (3) only contain naturally occurring sugars derived from fruit.

(Response) We acknowledge that fruit juice concentrates, sugars, honey, or syrups may be added for many reasons to a food, and they may have many affects in a food other than adding sweetness. As previously discussed in this part, we have evidence that excess calorie consumption from added sugars is a public health concern. In determining which sugars should be included in the definition of added sugars, we have considered the presence of added sugars as a component of dietary intake and whether it is consistent with the concept of empty calories, as discussed in the 2015 DGAC Report.

(Comment 208) One comment recommended that mono and disaccharides from any pure (i.e. with no added sugars) fruit ingredient, such as juices, concentrates, fruit pieces, pulps, and purees should not count as added sugars if these ingredients are not added for sweetening purposes.

(Response) We decline to revise the rule as suggested by the comment. We agree that whole fruit, fruit pieces, pulps, purees, 100 percent fruit juices, and certain fruit juice concentrates should not be considered added sugars because they are nutrient rich and maintain the basic properties of a fruit, which is not considered to be an added sugar. We have, in the final rule's definition of added sugars, excluded whole fruits, fruit pieces, pulps, purees, and certain concentrated fruit juices that are reconstituted to full strength or that may be added to other fruit juices, jellies, jams, and preserves under our standards of identity. However, we consider other mono and disaccharides from fruit ingredients to be added sugars. Sugars from fruits as well as fruit juices can be isolated (removed from the fruit), concentrated (decreased in volume by removing water), and stripped of nutrients such that they are essentially sugars that provide a concentrated source of calories to a food without other redeeming qualities (e.g. fruit syrups). Therefore, we are not excluding all mono and disaccharides from any pure fruit ingredient.

(Comment 209) Many comments opposed the inclusion of dried and concentrated dairy ingredients in the definition of added sugars. The comments explained that a number of dairy-based ingredients are isolated from milk and concentrated such that lactose, the naturally occurring sugar in milk, is the primary component. Examples of such ingredients include non-fat dry milk powder, dry whole milk, some forms of concentrated whey and dried whey, and milk and whey permeate. According to the comments, under the proposed definition of added sugars, the lactose in these dried and concentrated dairy ingredients would be considered an added sugar because it is the “primary ingredient.”

The comments also explained that lactose is not added to foods for the purpose of sweetening, and is instead added for other functional properties. Lactose contributes viscosity and mouthfeel, serves as a fermentation Start Printed Page 33836source in yogurt, increases shelf-life, provides foaming properties which are beneficial for cakes and frozen desserts, and serves as an emulsifier in sausages, soups, sauces, beverages, and salad dressing. Milk and whey protein concentrates, some of which contain lactose as the primary component, are typically used to increase the protein content of foods or as salt replacers to reduce the amount of sodium in a broad range of foods because of their unique salt enhancement characteristics.

The comments said that it would not be possible to make foods if lactose were used as the sole sweetener in the formulation, replacing the traditional sugar (e.g., sucrose). Lactose has about one sixth of the sweetness of sucrose. The amount of lactose required to achieve the same level of sweetness would compromise basic attributes of the product itself. For example, if lactose were added to a typical ice cream, the amount of lactose that would have to be added to sweeten the product would either depress the freezing point of the ice cream mix such that the product would not be able to freeze under normal conditions, or if it did freeze, would result in an extremely gritty texture defect which would make the product unacceptable to consumers.

One comment said that the common and usual names for dairy ingredients would cause confusion with added sugars declarations. For example, according to the comment, we allow manufacturers to identify skim milk, concentrated skim milk, and nonfat dry milk as “skim milk” or “nonfat milk” in an ingredients listing. In addition, two nonfat yogurt products could be formulated to the same final product composition, and the ingredient statements for both could read “nonfat milk and culture.” However, under the proposed definition of added sugars, a yogurt made using fluid skim milk as the sole dairy ingredient would have no added sugars, while a yogurt made using nonfat dry milk powder as the sole source of dairy solids would have to declare added sugars on the Nutrition Facts label.

One comment said that, when dry milk ingredients are added, consumers may be confused about the source of added sugar in the food if the food contains no obvious sweetener. For example, if a food with a dairy-based ingredient, such as nonfat dry milk or whey protein concentrate, would be required to declare the inherent lactose as added sugars on the Nutrition Facts label and the food contained no easily identifiable source of added sugars, consumers reading the ingredient list likely would not expect or recognize dairy ingredients as sources of “added sugars.”

The comments noted that dairy ingredients containing lactose may be added so that a dairy product meets the standards for identity. One comment stated that California's standard for fluid milk mandates higher milk solids than the Federal standard of identity, requiring the addition of nonfat dried milk or condensed skim milk containing lactose. The comment said that the lactose in these milk solids should not be considered an added sugar because it is not added for sweetening purposes. The comments also noted that for standardized dairy products such as milk and yogurt, current regulations do not require that a sweetener be added. The comments said that the exclusion of dairy-based ingredients as sweeteners in the standards is acknowledgement by FDA that the lactose in these dairy-derived ingredients is not primarily added to provide sweetness.

(Response) Lactose is a major component of milk solids. Many common concentrated or dried dairy ingredients, such as nonfat dry milk and whey powder contain lactose as the primary component. We agree that many dairy ingredients, even though high in lactose, are not considered a source of added sugars. Dairy ingredients and nutritive carbohydrate sweeteners are often considered to be in two separate ingredient categories during food formulation. The proposed definition of added sugars captured such dairy ingredients because it included naturally occurring sugars that are isolated from a whole food and concentrated so that sugar (in this case lactose) is the primary component. We did not intend to capture dairy ingredients under this portion of the definition. Therefore, we have removed the language from the definition of added sugars stating that naturally occurring sugars that are isolated from a whole food and concentrated so that sugar is the primary component are added sugars.

FDA regulations, at § 168.122, establish a standard of identity for lactose. The standard of identity for lactose states that it must contain not less than 98 percent lactose, mass over mass (m/m), calculated on a dry basis. We have historically considered purified lactose as a sweetener as it is included in 21 CFR part 168 under sweeteners and table syrups. We consider lactose as defined in § 168.122 to be an added sugar. Lactose, as defined under § 168.122 would be captured under the definition of added sugars because it is a free disaccharide. Therefore, with the revised definition, dairy ingredients, except lactose as defined in § 168.122, are not included in the definition of added sugars.

(iii) The “No Added Sugars” Nutrient Content Claim

(Comment 210) Many comments argued that the proposed definition is inconsistent with the regulation for the “no added sugars” nutrient content claim in § 101.60(c)(2) because the regulation recognizes that ingredients that contain sugars do not preclude the use of the claim unless the ingredients “functionally substitute for added sugars.” The comments noted that, if the definition of added sugars is not consistent with the “no added sugars” nutrient content claim regulation, products could conceivably bear “no added sugars” claims but have a gram amount of added sugars declared on the Nutrition Facts label, which would be confusing and misleading. One comment provided the example of a juice that is reconstituted from juice concentrate which meets the Brix standard for single-strength juices. The comment said that such a product can factually claim that it is “unsweetened”, but the manufacturer would have to disclose the amount of added sugars under the proposed rule.

Other comments noted that in the 1993 preamble to our rule defining the “no added sugars” nutrient content claim, we clarified that sugars inherent in a product, such as those found in fruit juices, would not disallow a no added sugars claim. One comment further noted that we advised that “the addition of water to a juice concentrate to produce a single strength juice would not preclude the use of a “no added sugar” claim; however the other conditions for the claim must still be met” (see 58 FR 2328). The comment said that this statement makes it clear that the presence of a fruit juice concentrate in a food does not prevent the use of a no added sugar claim. Another comment suggested that, in addition to fruit juice concentrates that are reconstituted to single strength in 100 percent juices, juice blends, juice drinks, and juice drink blends also should be excluded from the definition of added sugars because doing so would align with the current definition of no added sugars.

(Response) The comments expressed concern that fruit juice concentrates added to a single strength juice or dairy ingredients that are not added for the intended purpose of sweetening can currently bear the “no added sugars” claim, but sugars from the concentrated fruit juice or dairy ingredient would have to be declared as added sugars Start Printed Page 33837under the proposed definition. We have revised the rule to exclude certain fruit juice concentrates that are added to juices and that dilute juice beverages to adjust soluble solids content in accordance with § 102.33 and the standards of identity in parts 146 and 156. We are also excluding fruit juice concentrates that are reconstituted to 100 percent single strength juice. In addition, we have removed the language from the definition of added sugars which states that naturally occurring sugars that are isolated from a whole food and concentrated so that sugar is the primary component are added sugars. Therefore, dairy ingredients containing lactose, except lactose as defined in § 168.122, are no longer captured under the definition of added sugars. With these revisions to the definition of added sugars, there is no longer a conflict between the definition of added sugars and the requirements for use of the “no added sugars” nutrient content claim.

We decline to define added sugars based on the intended purpose of the ingredient as suggested by the comments because we are providing specifics of what we consider to be added sugars in the definition. In addition, in determining which sugars should be included in the definition of added sugars, we have considered the presence of added sugars as a component of dietary intake and whether it is consistent with the concept of empty calories, as discussed in the 2015 DGAC Report.

(iv) Fruit Jellies, Jams, and Preserves

(Comment 211) Several comments suggested that fruit jellies, jams, and preserves not be considered as added sugars. The comments noted that fruit jellies, jams, and preserves are subject to standards of identity set forth in § 150.140 and § 150.160 and are manufactured using certain fruit and fruit juice ingredients in combination with added sugars. One comment suggested that it is appropriate for such ingredients, regardless of whether they are derived from cane sugar, fruit juice syrup, fruit juice concentrates, etc., to count towards an added sugars declaration when used as sweeteners. The comment said that characterizing fruit and fruit juices in jellies, jams, and preserves (before the addition of sweeteners) should be excluded from the definition of added sugar because they do not serve as sugar substitutes, and are not “added” to a food for purposes of sweetening a food.

(Response) The definition of added sugars excludes fruits and 100 percent fruit juices. However, sugars from certain fruit juice concentrates fall within what we consider to be added sugars. Because fruit juice concentrates may be used as ingredients in fruit jellies, jams, and preserves, we have excluded those fruit juice concentrates that are used in accordance with the standards of identity in § 150.140 and § 150.160 from the definition of added sugars. However, any additional sugars that are added to the jelly, jam, or preserve would need to be declared as added sugars on the label.

(v) Dried Fruits

(Comment 212) Some comments said that dried fruit added to a product should not be considered to be an added sugar.

(Response) We agree that dried fruits which have not had any sugar added to them should not be considered to be an added sugar because they are essentially a dehydrated whole fruit and still retain the nutrients and other components of a whole fruit. However, if additional sugar is added to a dried fruit, the sugar added to the dried fruit must be declared on the label as added sugars.

(vi) Other Sugars/Sweeteners

(Comment 213) One comment would exempt isomaltulose and D-tagatose from labeling as added sugars due to their effect on reducing the risk of dental caries. The comment said that the proposed declaration for added sugars would not allow for adequate information to be provided to the consumer about carbohydrates such as isomaltulose (a disaccharide) and D-tagatose (a monosaccharide) that are “sugars” from a regulatory standpoint, but at the same time have very different and beneficial physiological properties than traditional “sugars.” The comment noted that isomaltulose and D-tagatose are noncariogenic carbohydrate sweeteners, and products containing these sweeteners can bear the dietary noncariogenic carbohydrate sweeteners and dental caries health claim if they meet the requirements of § 101.80. The comment also stated that these dental health benefits of isomaltulose and D-tagatose can also be the subject of a health claim under EU regulation 432/2012. The comment said that, aside from the dental health benefits, isomaltulose and D-tagatose are low-glycemic carbohydrate(s) resulting in a reduced blood glucose response and that this health effect is the subject of EU health claim 432/2012. The comment argued that such a health benefit provides the basis for a structure-function claim under the FD&C Act.

(Response) We have recognized through our health claim for noncariogenic carbohydrate sweeteners and dental caries that the sugars D-tagatose and isomaltulose may reduce the risk of dental caries (tooth decay). However, D-tagatose and isomaltulose are chemically sugars. Because these sweeteners are chemically sugars, and other substances are included or excluded from the definition of sugars and added sugars based on whether they are a free mono or disaccharide rather than on their physiological effects, including D-tagatose and isomaltulose is consistent with how we have characterized other sugars. As such, we are not excluding D-tagatose and isomaltulose from the added sugars declaration. However, manufacturers may still use the noncariogenic carbohydrate sweeteners and dental caries health claims on their products to make consumers aware that sugars contained in a food may reduce the risk of dental caries.

(Comment 214) Some comments would exclude Allulose (psicose) from the definition of added sugars because ketohexose sugars, such as Allulose, do not provide calories, are not metabolized, and do not raise blood sugar levels.

(Response) As discussed in our response to comment 124, we received a petition on this subject after the comment period closed. We intend to address this issue at a later date when we have had time to consider the information presented in the petition.

(Comment 215) Some comments stated that the proposed language, which states that “other caloric sweeteners” are considered added sugars, is confusing and unclear. One comment provided the example of applesauce, which can be used to replace oil in baking. In this example, unsweetened applesauce contains no added sugars, but can be used to both replace an oil and sweeten baked goods.

(Response) We agree that the language that states that “other caloric” sweeteners are considered to be added sugars may not be clear to manufacturers or consumers. We have removed this language from the definition of added sugars because caloric sweeteners, which are chemically sugars, are free mono or disaccharides and are captured elsewhere in the definition.

(vii) Other Comments

(Comment 216) Some comments noted that ingredients such as fruit juice concentrates, high fructose corn syrup, honey, and molasses contain significant amounts of water (e.g., 30 percent). The Start Printed Page 33838ingredients may contain a range of naturally occurring constituents besides sugars (e.g., polysaccharides, anthocyanins, vitamins, minerals, etc.). Therefore, to avoid overstating the amounts of added sugars, the comments said that it is important to take into account the actual “sugars” content of the ingredients. The comments suggested adding language to clarify that the quantity of added sugars declared in labeling will include only the actual “sugars” portion of the ingredient.

(Response) We agree that some ingredients containing sugars, such as syrups, contain water and other components that are not sugars, and that those components should not be considered as part of the added sugars declaration. Therefore, when such ingredients are included in foods, only the sugar portion of the ingredient should be declared on the label. The definition of added sugars states that free mono and disaccharides are considered added sugars, thus water and other components of sugar-containing ingredients are not added sugars and should not be declared as such. We have also revised the definition to say “sugars from syrups” to clarify that only the sugars component of the product should be declared as added sugars.

(Comment 217) Several comments would not consider natural sources of sugar (e.g., honey or maple syrup) to be added sugars. One comment would exempt natural, unrefined honey and other natural liquid or semi-liquid, unrefined, un-concentrated, whole-food sweetening agents because they are whole food products in an unrefined, un-concentrated, whole-food form. Conversely, the comment suggested that other sweeteners which are extracted, refined, and concentrated such as agave syrup, maple syrup, and evaporated cane juice syrup should be considered added sugars.

(Response) We disagree that all natural sources of sugar which have not been processed or refined should not be considered added sugars. In determining which sugars should be included in the definition of added sugars, we have considered the presence of added sugars as a component of dietary intake and whether it is consistent with the concept of empty calories, as discussed in the 2015 DGAC Report. The processing history (e.g., concentration or refinement) does not entirely determine whether or not sugar in an ingredient is added sugar. For example, natural sources of sugar present in foods, such as whole fruits, 100 percent juice, and dried fruits, are not considered added sugars because these foods are nutrient rich. However, products such as maple syrups or honey are included in the “empty calories” or “calories for other uses” category in the USDA Food Patterns. Therefore, we decline to exclude sugars from honey and maple syrup from the added sugars definition.

(Comment 218) One comment stated that consistency is needed in the definition of added sugars across Federal Agencies as well as by scientists, health professionals, manufacturers, and others. The comment identified fruit juice concentrate as one example of inconsistency among Federal Agencies. The comment cited a paper on the development of USDA estimates of added sugars (Ref. 123).

(Response) When establishing a regulatory definition for the purposes of nutrition labeling, we consider other regulatory aspects such as the impact on other regulations. We expect that establishing a regulatory definition of added sugars for the purpose of nutrition labeling will help other Federal Agencies and the scientific community in determining a definition for added sugars for Federal guidelines, programs, and research.

(Comment 219) One comment would not consider incidental additives or flavors containing sugars, such as dextrose, which are not added for sweetness as added sugars.

(Response) The comment did not explain what “incidental additives” are. However, we disagree that dextrose should be excluded from the definition of added sugars. Dextrose is a sugar, and, when added to a food, it acts in the same manner as other types of added sugars.

(Comment 220) Some comments said it will be difficult for manufacturers to obtain information about added sugars content of sourced ingredients that they get from suppliers. The comments questioned whether ingredients used in the formulation that are not an isolated sugar but are part of a compound ingredient must be labeled. One comment noted that, aside from the