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Food Labeling; Revision of the Nutrition and Supplement Facts Labels; Technical Amendments

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Start Preamble

AGENCY:

Food and Drug Administration, HHS.

ACTION:

Final rule; technical amendment.

SUMMARY:

The Food and Drug Administration (FDA or we) is amending the regulations pertaining to the Nutrition Facts and Supplement Facts labels. The amendments correct errors that were made in labeling examples, restore incorrect deletions, correct the edition of a reference cited in the rule, and correct cross-references to other regulations. This action is ministerial or editorial in nature.

DATES:

This rule is effective December 21, 2018.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

Mark Kantor, Center for Food Safety and Applied Nutrition, Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740, 240-402-2082.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

I. Background

In the Federal Register of May 27, 2016 (81 FR 33742 and 81 FR 34000), we published two final rules entitled “Food Labeling: Revision of the Nutrition and Supplement Facts Labels” (the Nutrition Facts Label Final Rule) and “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 Serving Size Final Rule). The Nutrition Facts Label 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;Start Printed Page 65494
  • 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 Nutrition Facts Label 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 label 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 Nutrition Facts Label 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 Nutrition Facts Label 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 nonenzymatic 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 nonenzymatic 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 Nutrition Facts Label 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 Nutrition Facts Label 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 Nutrition Facts Label Final Rule's effective date. (In the Federal Register of May 4, 2018 (83 FR 19619), however, we extended the compliance date for manufacturers with $10 million or more in annual food sales from July 26, 2018, to January 1, 2020, and the compliance date for manufacturers with less than $10 million in annual food sales from July 26, 2019, to January 1, 2021.)

The Serving Size Final Rule requires all containers, including containers of products with “large” reference amounts customarily consumed (RACCs) (i.e., products with RACCs of at least 100 grams (g) or 100 milliliters (mL)), containing less than 200 percent of the RACC to be labeled as a single-serving container. Except for when certain exceptions apply, the Serving Size Final Rule further requires that containers and units that contain at least 200 percent and up to and including 300 percent of the RACC be labeled with a column of nutrition information within the Nutrition Facts label that lists the quantitative amounts and percent DVs for the entire container, in addition to the required column listing the quantitative amounts and percent DVs for a serving that is less than the entire container (i.e., the serving size derived from the RACC). The Serving Size Final Rule also updates, modifies, and establishes RACCs for certain foods and product categories.

II. Description of the Technical Amendments

Since we published the two final rules in the Federal Register, we have noted or have been made aware of errors that appeared in the final rules. Most errors are non-substantive; for example, § 101.9(e)(5) and (6) (21 CFR 101.9(e)(5) and (6)) show sample Nutrition Facts labels. The sample labels, however, differed from the other sample labels in the Nutrition Facts Label Final Rule in that the line underneath “Saturated Fat” did not extend completely to the left edge of the label. Through this technical amendment, we are revising the sample labels so that the line extends completely to the left edge of the label.

Other errors reflected inconsistencies between the Nutrition Facts Label Final Rule's requirements and sample labels. For example, one sample label omitted information regarding the number of servings per container and serving size; both information elements are required. Through this technical amendment, we are revising the sample label to include the missing information.

Three errors resulted in the removal of preexisting provisions even though the Nutrition Facts Label Final Rule did not intend to remove those provisions. To the contrary, the preamble to the Nutrition Facts Label Final Rule discussed the provisions as still existing. Consequently, the technical amendment restores those provisions.

Other errors pertained to cross-references; in some instances, the Nutrition Facts Label Final Rule and the Serving Size Final Rule mistakenly referred to a different provision. In another instance, the Nutrition Facts Label Final Rule omitted a cross-reference to another provision. The technical amendment corrects the cross-references.

We describe the amendments in more detail below.

A. Section 101.9(b) and a Cross-Reference

Section 101.9(b)(2)(i) provides, in part, the requirements for serving sizes for products in discrete units (e.g., muffins, sliced products, such as sliced bread, or individually packaged products within a multiserving package). The Serving Size Final Rule revised § 101.9(b)(2)(i) by removing paragraph (b)(2)(i)(E) (which had pertained to the serving size declaration of individual units in certain multiserving packages where the product has a reference amount of 100 grams (or milliliters) or larger) and redesignated paragraphs (b)(2)(i)(F) through (I) accordingly (see 81 FR 34000 at 34040). For example, § 101.9(b)(2)(i)(G) was redesignated as § 101.9(b)(2)(i)(F).

However, the Serving Size Final Rule neglected to revise a reference to previous § 101.9(b)(2)(i)(G) that appears in § 101.9(b)(5)(vi) (which pertains to ounces as a common household measure, with an appropriate visual unit of measure, for products that naturally vary in size). Consequently, we are revising § 101.9(b)(5)(vi) to refer to § 101.9(b)(2)(i)(F).

B. Section 101.9(c)(2) and Statements Regarding Saturated Fat, Trans Fat, Polyunsaturated Fat, and Monounsaturated Fat

Section 101.9(c)(2) discusses how a statement of the number of grams of total fat in a serving must be expressed. Before we issued the Nutrition Facts Label Final Rule, § 101.9(c)(2) contained four subordinate paragraphs that discussed how the number of grams of saturated fat, trans fat, polyunsaturated fat, and monounsaturated fat must be expressed; these subordinate paragraphs were numbered as § 101.9(c)(2)(i) through (iv). The Nutrition Facts Label Final Rule did not amend or revise these subordinate paragraphs; to the contrary, in the preamble to the Nutrition Facts Label Final Rule, we either referred to them to describe an existing requirement or expressly stated that we did not intend to change them (see 81 FR 33742 at 33785, 33860).

Nevertheless, after we published the Nutrition Facts Label Final Rule, we learned that § 101.9(c)(2)(i) through (iv) had been removed from the Code of Federal Regulations. Because we did not intend such a result, the technical amendment restores § 101.9(c)(2)(i) through (iv).Start Printed Page 65495

C. Section 101.9(c)(6)(i), Fiber, and a Cross-Reference

Section 101.9(c)(6)(i) discusses, among other things, specific isolated or synthetic non-digestible carbohydrates that we have determined to have physiological effects that are beneficial to human health and that must be included in the calculation of the amount of dietary fiber. One such carbohydrate is psyllium husk, and the Nutrition Facts Label Final Rule contained a cross-reference to § 101.81(c)(2)(ii)(A)(6) (21 CFR 101.81(c)(2)(ii)(A)(6)).

The cross-reference was in error. The correct cross-reference is § 101.81(c)(2)(ii)(B)(1), and so we have revised § 101.9(c)(6)(i) accordingly.

D. Section 101.9(c)(6)(iii), Added Sugars, and Simplified Format

Section 101.9(c)(6)(iii) discusses how the “added sugars” statement must appear. The provision states, among other things, that if a statement of the added sugars content is not required and, as a result, is not declared on the Nutrition Facts label, then the statement “Not a significant source of added sugars” must be placed at the bottom of the table of nutrient values.

However, § 101.9(f) discusses when the declaration of nutrition information may be presented in a simplified format. In general, a simplified format may be used when a food product contains insignificant amounts of eight or more of specific nutrients; these nutrients include “added sugars.” Therefore, the technical amendment revises § 101.9(c)(6)(iii) by adding “Except as provided for in paragraph (f) of this section,” at the start of the sentence describing where the statement, “Not a significant source of added sugars,” must be placed.

E. Section 101.9(c)(8)(ii) and Quantitative Weight and § 101.9(c)(8)(iv) and Retinol Activity Equivalents (RAE) and the Order of Nutrients on the Nutrition Facts Label

Section 101.9(c)(8) establishes requirements related to the disclosure of vitamins and minerals on the Nutrition Facts label. The rule, at § 101.9(c)(8)(ii), discusses the declaration of vitamins and minerals as a quantitative amount by weight and percent of the Reference Daily Intake (RDI). In the preamble to the proposed rule to revise the Nutrition Facts and Supplement Facts labels, we described the proposed rule as requiring the declaration of the absolute amounts for all mandatory and voluntary vitamins and minerals, in addition to the requirement for percent DV declaration; we also said that an exception to the proposed requirement would be Nutrition Facts labels for foods in small packages that have a total surface area available to bear labeling of 40 or less square inches (79 FR 11880 at 11952, March 3, 2014). The preamble to the Nutrition Facts Label Final Rule noted the same exception for smaller packages (81 FR 33742 at 33946).

However, the codified text inadvertently omitted the language creating the exception. Consequently, we are restoring the exception to § 101.9(c)(8)(ii) so that the declaration of quantitative weights for these vitamins and minerals are not required for labels described in § 101.9(j)(13).

Additionally, § 101.9(c)(8)(ii) contains a sentence mentioning the statement of the amount per serving of the vitamins and minerals “as described in this paragraph.” To clarify the reference of “this paragraph,” the technical amendment revises “this paragraph” to read as “this paragraph (c)(8)(ii)”.

Our regulations, at § 101.9(c)(8)(iv), describe, among other things, the units of measure for certain vitamins and minerals. The rule lists the nutrients, their units of measure, and their RDIs in a table; for vitamin A, the unit of measure is in micrograms RAE. Footnote 2 to the table explains that RAE means retinol activity equivalents and that 1 microgram RAE equals 1 microgram retinol, 2 microgram supplemental β-carotene, 12 micrograms β-carotene, or 24 micrograms α-carotene, or 24 micrograms β-cryptoxanthin.

In the preamble to the Nutrition Facts Label Final Rule, in response to a comment regarding the unit of measure for vitamin A, we explained that the conversions for microgram RAE were 1 retinol activity equivalent (mcg RAE) = 1 mcg retinol, 2 mcg supplemental β-carotene, 12 mcg of dietary β-carotene, or 24 mcg of other dietary provitamin A carotenoids (α-carotene or β-cryptoxanthin) (81 FR 33742 at 33913) (emphasis added). However, we neglected to insert the word “dietary” before β-carotene, α-carotene, and β-cryptoxanthin in footnote 2.

The technical amendment inserts “dietary” before β-carotene, α-carotene, and β-cryptoxanthin in the footnote and also renumbers the footnote as footnote 3. The renumbering of the footnote is necessary because the technical amendment also revises the order of the nutrients in the table at 21 CFR 101.8(c)(8)(iv); the nutrients were supposed to be placed in order so that nutrients that must be disclosed on the label appear first. However, the Nutrition Facts Label Final Rule inadvertently neglected to reorder the nutrients in the table to reflect the status of vitamin D, calcium, iron, and potassium as nutrients that must be disclosed. As a result of reordering the nutrients in the table, footnote 2 is now footnote 3.

F. Section 101.9(d)(1)(iii) and Type Size

Section 101.9(d)(1)(iii) establishes the type sizes for information on the Nutrition Facts label. Among other things, the regulation requires information required under § 101.9(d)(9) (regarding the footnote to the Nutrition Facts label) to be in a type size no smaller than 6 point.

In the preamble to the Nutrition Facts Label Final Rule, we discussed how other information pertaining to “Amount per serving” and “% Daily Value” also would be required to be in a type size no smaller than 6 point (see 81 FR 33742 at 33944 (discussing the type size for “Amount per serving”) and 81 FR 33742 at 33952 (discussing the type size for “% Daily Value”)). However, the codified text at § 101.9(d)(1)(iii) omitted the paragraph designations for “Amount per serving” and “% Daily Value,” which are § 101.9(d)(4) and (6), respectively. Consequently, the technical amendment adds paragraphs (d)(4) and (6) to the information that must be in a type size no smaller than 6 point.

G. Section 101.9(e)(5) and (6) and Corrections to Sample Labels

Section 101.9(e)(5) and (6) show sample Nutrition Facts labels. The sample labels illustrate how dual column labels might appear. Some sample labels, however, differed from the other sample labels in the Nutrition Facts Label Final Rule in that the line underneath “Saturated Fat” did not extend completely to the left edge of the label.

The technical amendment revises the sample labels so that the line extends completely to the left edge of the label.

In § 101.9(e)(5), the revised sample label also changes the value for potassium from 45 mg to 40 mg because the declaration of potassium is to be expressed to the nearest 10 mg. increment.

Additionally, in § 101.9(e)(6)(i), we have revised the title for one sample label from “Dual Column Display” to “Dual Column Display, Per Serving and Per Container.” This revised title should help distinguish this sample label from the other sample label in § 101.9(e)(6)(i). As for the other sample label titled “Dual Columns, Per Serving and Per Unit”), the sample label inadvertently omitted information regarding the Start Printed Page 65496servings per container and serving size. The technical amendment revises the sample label for “Dual Columns, Per Serving and Per Unit” to include information on servings per container and serving size.

In § 101.9(e)(6)(ii), the sample label appeared blurred or difficult to read when printed in the Federal Register.

The technical amendment substitutes a better quality image for the sample label. There are no changes to the contents of the sample label itself.

H. Section 101.9(j)(13) and Addresses or Phone Numbers for Obtaining Required Nutrition Information and the Exception for Certain Individual Serving Size Packages

Section 101.9(j)(13)(i) discusses requirements for foods in small packages. The Nutrition Facts Label Final Rule revised § 101.9(j)(13)(i) so that the Nutrition Facts label on small packages would not be required to bear a footnote explaining what the “% Daily Value” means and manufacturers could voluntarily include an abbreviated footnote of “% DV = % Daily Value” in a type size no smaller than 6 point.

In revising § 101.9(j)(13)(i), we did not intend to affect the preexisting paragraphs at § 101.9(j)(13)(i)(A), which pertains to the use of an address or telephone number where consumers can obtain required information, and § 101.9(j)(13)(i)(B), which pertains to an exception for certain individual serving size packages of food. After we issued the Nutrition Facts Label Final Rule, we were informed that both paragraphs (j)(13)(i)(A) and (B) had, nevertheless, been deleted. Because we did not intend such a result, we are restoring paragraphs (j)(13)(i)(A) and (B) to § 101.9(j)(13)(i) and also correcting an error in § 101.9(j)(13)(i)(B) by replacing the reference to “§ 101.2(c)(5)” with “§ 101.2(c)(2).” The correction is necessary because § 101.2(c)(5) does not exist, and the correct reference is to § 101.2(c)(2).

I. Section 101.36 and Corrections to the Spelling of Phosphorus, the Listing of Potassium, the Size of Calories, and a Cross-Reference

Section 101.36(b)(2)(i)(B) (21 CFR 101.36(b)(2)(i)(B)) names dietary ingredients that are to be declared on the Supplement Facts label. The Nutrition Facts Label Final Rule incorrectly spelled phosphorus as “phosphorous,” so the technical amendment uses the correct spelling. Additionally, we have replaced “Vitamin A” with “vitamin A” for purposes of punctuation.

Section 101.36(b)(2)(ii)(B) discusses how the amounts of vitamins and minerals must be declared on the Supplement Facts label. In brief, the regulation states that the amounts of vitamins and minerals, excluding sodium and potassium, must be the amount of vitamin or mineral included in one serving of the product, using the units of measurement and levels of significance given in § 101.9(c)(8)(iv). The exclusion regarding potassium was based originally on the fact that there was no RDI value for potassium. The technical amendment deletes “and potassium” from the exclusion in § 101.36(b)(2)(ii)(B) because § 101.9(c)(8)(iv), among other things, does set forth the RDI, nomenclature, and unit of measure for potassium. Thus, because § 101.9(c)(8)(iv) sets forth an RDI and units of measure for potassium, the exclusion for potassium in § 101.36(b)(2)(ii)(B) is no longer appropriate.

Section 101.36(e) discusses type sizes for certain information on the Supplement Facts label. The rule specifies a minimum type size for footnotes (among other things) and gives an example of a footnote statement. However, the example, “Percent Daily Values are based on a 2,000 calorie diet,” was missing a quotation mark. The technical amendment restores the missing quotation mark for the phrase “Percent Daily Values are based on a 2,000 calorie diet.”

Additionally, § 101.36(e) contains a sentence specifying the font size for “Calories” and the heading “Calories” and the actual number of calories per serving. This sentence, however, should have been removed from the codified text because, as we stated in our response to comment 483 in the Nutrition Facts Label Final Rule, many dietary supplement products may contribute a negligible amount of calories (81 FR 33742 at 33939). We stated that the Nutrition Facts Label Final Rule does not require information about calories to be displayed in a larger type size or highlighted on any Supplement Facts labels (id.). Therefore, we are removing the sentence regarding the font size and highlighting for “Calories” and the actual number of calories from § 101.36(e).

J. Section 101.36 and Sample Labels

Section 101.36(e)(11) shows two samples of Supplement Facts labels. The sample label in paragraph (e)(11)(ii) has an ingredient list that has “Sucrose” as the first ingredient.

The correct term, however, is “sugar” instead of “sucrose,” so the technical amendment replaces “Sucrose” with “Sugar” in the sample label.

The sample label in paragraph (e)(11)(iv) has an entry of 0 grams of trans fat.

The technical amendment removes the trans fat line from the sample label because certain dietary ingredients or subcomponents, including trans fat, that are not present or are present in amounts that can be declared as zero, must not be declared on the Supplement Facts label (see § 101.36(b)(2)).

The sample label in paragraph (e)(12) contained two errors. The sample label incorrectly placed choline after potassium when, under § 101.36(b)(2)(i)(B), choline should appear after pantothenic acid. Additionally, the sample label incorrectly gave a value for potassium. Under § 101.36(b)(2), vitamins and minerals cannot be declared on the Supplement Facts label that are not present, or that are present in amounts that can be declared as zero in § 101.9(c) (such as amounts corresponding to less than 2 percent of the RDI for the nutrient). In the sample label that appeared in the Nutrition Facts Label Final Rule, the level for potassium was less than 2 percent of the RDI. Consequently, the technical amendment revises the sample label to provide a level of potassium that would cause potassium to be listed on the Supplement Facts label.

K. Appendix B and Examples of Graphic Enhancements Used by FDA

The regulations at part 101 (21 CFR part 101) contain several appendices. One appendix, identified as Appendix B and entitled “Examples of Graphic Enhancements used by the FDA,” illustrates various features of the Nutrition Facts label and identifies type sizes, fonts, and other specifications that we use in our illustrations of the Nutrition Facts label.

When we issued the Nutrition Facts Label Final Rule, we did not update Appendix B to correspond to the Nutrition Facts Label Final Rule's new and revised requirements. The technical amendment, therefore, updates Appendix B so that the illustration corresponds to the Nutrition Facts Label Final Rule. The updated image also changes the value for potassium from 235 mg to 240 mg; the change to 240 mg is consistent with the rounding increments used for potassium when a serving contains greater than 140 mg of potassium. In such cases, the declared value is rounded to the nearest 10 mg increment.Start Printed Page 65497

III. The Administrative Procedure Act

Publication of this document constitutes final action of these changes under the Administrative Procedure Act (APA) (5 U.S.C. 553). Under 5 U.S.C. 553(b)(3)(B) of the APA, an Agency may, for good cause, find (and incorporate the finding and a brief statement of reasons in the rules issued) that notice and public comment procedure on a rule is impracticable, unnecessary, or contrary to the public interest. We have determined that notice and public comment are unnecessary because these amendments only make technical or non-substantive changes, such as correcting sample labels, correcting cross-references, and restoring provisions that were never intended to be removed. For these reasons, we have determined that publishing a notice of proposed rulemaking and providing opportunity for public comment is unnecessary.

In addition, FDA finds good cause for these amendments to become effective on the date of publication of this action. The APA allows an effective date less than 30 days after publication as provided by an Agency for good cause found and published with the rule (5 U.S.C. 553(d)(3)). A delayed effective date is unnecessary in this case because the amendments do not impose any new regulatory requirements on affected parties. As a result, affected parties do not need time to prepare before the rule takes effect. Therefore, we find good cause for this correction to become effective on the date of publication of this action.

IV. Paperwork Reduction Act of 1995

This final rule refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in part 101 have been approved under OMB control number 0910-0381.

V. Analysis of Environmental Impact

We have determined under 21 CFR 25.30(h) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

VI. Federalism

We have analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule does not contain policies that have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, we conclude that the rule does not contain policies that have federalism implications as defined in the Executive order and, consequently, a federalism summary impact statement is not required.

VII. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

We have analyzed this rule in accordance with the principles set forth in Executive Order 13175. We have determined that the rule does not contain policies that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. Accordingly, we conclude that the rule does not contain policies that have tribal implications as defined in the Executive Order and, consequently, a tribal summary impact statement is not required.

Start List of Subjects

List of Subjects in 21 CFR Part 101

  • Food labeling
  • Incorporation by reference
  • Nutrition
  • Reporting and recordkeeping requirements
End List of Subjects

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 101 is amended as follows:

Start Part

PART 101—FOOD LABELING

End Part Start Amendment Part

1. The authority citation for part 101 continues to read as follows:

End Amendment Part Start Authority

Authority: 15 U.S.C. 1453, 1454, 1455; 21 U.S.C. 321, 331, 342, 343, 348, 371; 42 U.S.C. 243, 264, 271.

End Authority Start Amendment Part

2. In § 101.9:

End Amendment Part Start Amendment Part

a. Revise paragraph (b)(5)(vi);

End Amendment Part Start Amendment Part

b. Add paragraphs (c)(2)(i) through (iv);

End Amendment Part Start Amendment Part

c. Revise paragraphs (c)(6)(i) introductory text, (c)(6)(iii), (c)(8)(ii) introductory text, (c)(8)(iv), (d)(1)(iii), (e)(5), and (e)(6)(i) and (ii); and

End Amendment Part Start Amendment Part

d. Add paragraphs (j)(13)(i)(A) and (B).

End Amendment Part

The revisions and additions read as follows:

Nutrition labeling of food.
* * * * *

(b) * * *

(5) * * *

(vi) Ounces with an appropriate visual unit of measure, as described in paragraph (b)(5)(iii) of this section, may be used for products that naturally vary in size as provided for in paragraph (b)(2)(i)(F) of this section.

* * * * *

(c) * * *

(2) * * *

(i) “Saturated fat,” or “Saturated”: A statement of the number of grams of saturated fat in a serving defined as the sum of all fatty acids containing no double bonds, except that label declaration of saturated fat content information is not required for products that contain less than 0.5 gram of total fat in a serving if no claims are made about fat, fatty acid, or cholesterol content, and if “calories from saturated fat” is not declared. Except as provided for in paragraph (f) of this section, if a statement of the saturated fat content is not required and, as a result, not declared, the statement “Not a significant source of saturated fat” shall be placed at the bottom of the table of nutrient values. Saturated fat content shall be indented and expressed as grams per serving to the nearest 0.5 gram (1/2) gram increment below 5 grams and to the nearest gram increment above 5 grams. If the serving contains less than 0.5 gram, the content shall be expressed as zero.

(ii) “Trans fat” or “Trans”: A statement of the number of grams of trans fat in a serving, defined as the sum of all unsaturated fatty acids that contain one or more isolated (i.e., nonconjugated) double bonds in a trans configuration, except that label declaration of trans fat content information is not required for products that contain less than 0.5 gram of total fat in a serving if no claims are made about fat, fatty acid or cholesterol content. The word “trans” may be italicized to indicate its Latin origin. Trans fat content shall be indented and expressed as grams per serving to the nearest 0.5 (1/2)-gram increment below 5 grams and to the nearest gram increment above 5 grams. If the serving contains less than 0.5 gram, the content, when declared, shall be expressed as zero. Except as provided for in paragraph (f) of this section, if a statement of the trans fat content is not required and, as a result, not declared, the statement “Not a significant source of trans fat” shall be placed at the bottom of the table of nutrient values.

(iii) “Polyunsaturated fat” or “Poly-unsaturated” (VOLUNTARY): A statement of the number of grams of polyunsaturated fat in a serving defined as cis,cis-methylene-interrupted Start Printed Page 65498polyunsaturated fatty acids may be declared voluntarily, except that when monounsaturated fat is declared, or when a claim about fatty acids or cholesterol is made on the label or in labeling of a food other than one that meets the criteria in § 101.62(b)(1) for a claim for “fat free,” label declaration of polyunsaturated fat is required. Polyunsaturated fat content shall be indented and expressed as grams per serving to the nearest 0.5 (1/2) gram increment below 5 grams and to the nearest gram increment above 5 grams. If the serving contains less than 0.5 gram, the content shall be expressed as zero.

(iv) “Monounsaturated fat” or “Monounsaturated” (VOLUNTARY): A statement of the number of grams of monounsaturated fat in a serving defined as cis-monounsaturated fatty acids may be declared voluntarily except that when polyunsaturated fat is declared, or when a claim about fatty acids or cholesterol is made on the label or in labeling of a food other than one that meets the criteria in § 101.62(b)(1) for a claim for “fat free,” label declaration of monounsaturated fat is required. Monounsaturated fat content shall be indented and expressed as grams per serving to the nearest 0.5 (1/2) gram increment below 5 grams and to the nearest gram increment above 5 grams. If the serving contains less than 0.5 gram, the content shall be expressed as zero.

* * * * *

(6) * * *

(i) “Dietary fiber”: A statement of the number of grams of total dietary fiber in a serving, indented and expressed to the nearest gram, except that if a serving contains less than 1 gram, declaration of dietary fiber is not required or, alternatively, the statement “Contains less than 1 gram” or “less than 1 gram” may be used, and if the serving contains less than 0.5 gram, the content may be expressed as zero. Dietary fiber is defined as non-digestible soluble and insoluble carbohydrates (with 3 or more monomeric units), and lignin that are intrinsic and intact in plants; isolated or synthetic non-digestible carbohydrates (with 3 or more monomeric units) determined by FDA to have physiological effects that are beneficial to human health. Except as provided for in paragraph (f) of this section, if dietary fiber content is not required, and as a result not declared, the statement “Not a significant source of dietary fiber” shall be placed at the bottom of the table of nutrient values in the same type size. The following isolated or synthetic nondigestible carbohydrate(s) have been determined by FDA to have physiological effects that are beneficial to human health and, therefore, shall be included in the calculation of the amount of dietary fiber: [beta]-glucan soluble fiber (as described in § 101.81(c)(2)(ii)(A)), psyllium husk (as described in § 101.81(c)(2)(ii)(B)(1)), cellulose, guar gum, pectin, locust bean gum, and hydroxypropylmethylcellulose. The manufacturer must make and keep records in accordance with paragraphs (g)(10) and (11) of this section to verify the declared amount of dietary fiber in the label and labeling of food when a mixture of dietary fiber, and added nondigestible carbohydrate(s) that does not meet the definition of dietary fiber, is present in the food.

* * * * *

(iii) “Added Sugars”: A statement of the number of grams of added sugars in a serving, except that label declaration 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, added sugars, or sugar alcohol content. Except as provided for in paragraph (f) of this section, if a statement of the added sugars content is not required and, as a result, not declared, the statement “Not a significant source of added sugars” shall be placed at the bottom of the table of nutrient values in the same type size. Added sugars are either added during the processing of foods, or are packaged as such, and include sugars (free, mono and disaccharides), sugars from syrups and honey, and sugars from concentrated fruit or vegetable juices that are in excess of what would be expected from the same volume of 100 percent fruit or vegetable juice of the same type, except that fruit or vegetable juice concentrated from 100 percent juices sold to consumers, fruit or vegetable juice concentrates used towards the total juice percentage label declaration under § 101.30 or for Brix standardization under § 102.33(g)(2) of this chapter, 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 of this chapter, or the fruit component of fruit spreads shall not be labeled as added sugars. Added sugars content shall be indented under Total Sugars and shall be prefaced with the word “Includes” followed by the amount (in grams) “Added Sugars” (“Includes `X' g Added Sugars”). It shall be expressed to the nearest gram, except that if a serving contains less than 1 gram, the statement “Contains less than 1 gram” or “less than 1 gram” may be used as an alternative, and if the serving contains less than 0.5 gram, the content may be expressed as zero. When a mixture of naturally occurring and added sugars is present in the food, and for specific foods containing added sugars, alone or in combination with naturally occurring sugars, where the added sugars are subject to fermentation and/or non-enzymatic browning, the manufacturer must make and keep records in accordance with paragraphs (g)(10) and (11) of this section to verify the declared amount of added sugars in the label and labeling of food.

* * * * *

(8) * * *

(ii) The declaration of vitamins and minerals as a quantitative amount by weight and percent of the RDI shall include vitamin D, calcium, iron, and potassium in that order, for infants through 12 months, children 1 through 3 years of age, pregnant women, lactating women, and adults and children 4 or more years of age, except quantitative weights for these vitamins and minerals are not required for labels described in paragraph (j)(13) of this section. The declaration of folic acid shall be included as a quantitative amount by weight when added as a nutrient supplement or a claim is made about the nutrient. The declaration of vitamins and minerals in a food, as a quantitative amount by weight and percent of the RDI, may include any of the other vitamins and minerals listed in paragraph (c)(8)(iv) of this section. The declaration of vitamins and minerals shall include any of the other vitamins and minerals listed in paragraph (c)(8)(iv) of this section as a statement of the amount per serving of the vitamins and minerals as described in this paragraph (c)(8)(ii), calculated as a percent of the RDI and expressed as a percent of the Daily Value, when they are added as a nutrient supplement, or when a claim is made about them, unless otherwise stated as quantitative amount by weight and percent of the Daily Value. Other vitamins and minerals need not be declared if neither the nutrient nor the component is otherwise referred to on the label or the labeling or advertising and the vitamins and minerals are:

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(iv) The following RDIs, nomenclature, and units of measure are established for the following vitamins and minerals which are essential in human nutrition:Start Printed Page 65499

RDI
NutrientUnit of measureAdults and children ≥ 4 yearsInfants 1 through 12 monthsChildren 1 through 3 yearsPregnant women and lactating women
Vitamin DMicrograms (mcg) 220101515
CalciumMilligrams (mg)1,3002607001,300
IronMilligrams (mg)1811727
PotassiumMilligrams (mg)4,7007003,0005,100
Vitamin AMicrograms RAE 3 (mcg)9005003001,300
Vitamin CMilligrams (mg)905015120
Vitamin EMilligrams (mg) 4155619
Vitamin KMicrograms (mcg)1202.53090
ThiaminMilligrams (mg)1.20.30.51.4
RiboflavinMilligrams (mg)1.30.40.51.6
NiacinMilligrams NE 5 (mg)164618
Vitamin B6Milligrams (mg)1.70.30.52.0
Folate 6Micrograms DFE 7 (mcg)40080150600
Vitamin B12Micrograms (mcg)2.40.50.92.8
BiotinMicrograms (mcg)306835
Pantothenic acidMilligrams (mg)51.827
PhosphorusMilligrams (mg)1,2502754601,250
IodineMicrograms (mcg)15013090290
MagnesiumMilligrams (mg)4207580400
ZincMilligrams (mg)113313
SeleniumMicrograms (mcg)55202070
CopperMilligrams (mg)0.90.20.31.3
ManganeseMilligrams (mg)2.30.61.22.6
ChromiumMicrograms (mcg)355.51145
MolybdenumMicrograms (mcg)4531750
ChlorideMilligrams (mg)2,3005701,5002,300
CholineMilligrams (mg)550150200550
ProteinGrams (g)N/A11N/A8 71
1 RDIs are based on dietary reference intake recommendations for infants through 12 months of age.
2 The amount of vitamin D may, but is not required to, be expressed in international units (IU), in addition to the mandatory declaration in mcg. Any declaration of the amount of vitamin D in IU must appear in parentheses after the declaration of the amount of vitamin D in mcg.
3 RAE = Retinol activity equivalents; 1 microgram RAE = 1 microgram retinol, 2 microgram supplemental β-carotene, 12 micrograms dietary β-carotene, or 24 micrograms dietary α-carotene, or dietary 24 micrograms dietary β-cryptoxanthin.
4 1 mg α-tocopherol (label claim) = 1 mg α-tocopherol = 1 mg RRR- α-tocopherol = 2 mg all rac-α-tocopherol.
5 NE = Niacin equivalents, 1 mg NE = 1 mg niacin = 60 milligrams tryptophan.
6 “Folate” and “Folic Acid” must be used for purposes of declaration in the labeling of conventional foods and dietary supplements. The declaration for folate must be in mcg DFE (when expressed as a quantitative amount by weight in a conventional food or a dietary supplement), and percent DV based on folate in mcg DFE. Folate may be expressed as a percent DV in conventional foods. When folic acid is added or when a claim is made about the nutrient, folic acid must be declared in parentheses, as mcg of folic acid.
7 DFE = Dietary Folate Equivalents; 1 DFE = 1 mcg naturally occurring folate = 0.6 mcg folic acid.
8 Based on the reference caloric intake of 2,000 calories for adults and children aged 4 years and older, and for pregnant women and lactating women.
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(d)(1) * * *

(iii) Information required in paragraphs (d)(7) and (8) of this section shall be in type size no smaller than 8 point. Information required in paragraph (d)(5) of this section for the “Calories” declaration shall be highlighted in bold or extra bold and shall be in a type size no smaller than 16 point except the type size for this information required in the tabular displays as shown in paragraphs (d)(11), (e)(6)(ii), and (j)(13)(ii)(A)(1) of this section and the linear display for small packages as shown in paragraph (j)(13)(ii)(A)(2) of this section shall be in a type size no smaller than 10 point. The numeric amount for the information required in paragraph (d)(5) of this section shall also be highlighted in bold or extra bold type and shall be in a type size no smaller than 22 point, except the type size for this information required for the tabular display for small packages as shown in paragraph (j)(13)(ii)(A)(1) of this section, and for the linear display for small packages as shown in paragraph (j)(13)(ii)(A)(2) of this section no smaller than 14 point. The information required in paragraphs (d)(4), (6), and (9) of this section shall be in a type size no smaller than 6 point. When provided, the information described in paragraph (d)(10) of this section shall be in a type size no smaller than 6 point.

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(e) * * *

(5) The following sample label illustrates the provisions of paragraph (e) of this section:

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(6) * * *

(i) Nutrient information for vitamins and minerals shall be separated from information on other nutrients by a bar and shall be arrayed vertically in the following order: Vitamin D, calcium, iron, and potassium as shown in the following sample labels.

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(ii) The following sample label illustrates the provisions of paragraphs (b)(2)(i)(D) and (b)(12)(i) of this section for labels that use the tabular display.

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(j) * * *

(13)(i) * * *

(A) The manufacturer, packer, or distributor shall provide on the label of packages that qualify for and use this exemption an address or telephone number that a consumer can use to obtain the required nutrition information (e.g., “For nutrition information, call 1-800-123-4567”).

(B) When such products bear nutrition labeling, either voluntarily or because nutrition claims or other nutrition information is provided, all required information shall be in type size no smaller than 6 point or all upper-case type of 1-16 inches minimum height, except that individual serving-size packages of food served with meals in restaurants, institutions, and on board passenger carriers, and not intended for sale at retail, may comply with § 101.2(c)(2).

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Start Amendment Part

3. In § 101.36 revise paragraphs (b)(2)(i)(B) introductory text, (b)(2)(ii)(B), (e) introductory text, (e)(11)(ii) and (iv), and (e)(12) to read as follows:

End Amendment Part
Nutrition labeling of dietary supplements.
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(b) * * *

(2) * * *

(i) * * *

(B) The names of dietary ingredients that are declared under paragraph (b)(2)(i) of this section shall be presented in a column aligned on the Start Printed Page 65503left side of the nutritional label in the order and manner of indentation specified in § 101.9(c), except that calcium and iron shall follow choline, and sodium and potassium shall follow chloride. This results in the following order for vitamins and minerals: Vitamin A, vitamin C, vitamin D, vitamin E, vitamin K, thiamin, riboflavin, niacin, vitamin B6, folate and folic acid, vitamin B12, biotin, pantothenic acid, choline, calcium, iron, phosphorus, iodine, magnesium, zinc, selenium, copper, manganese, chromium, molybdenum, chloride, sodium, potassium, and fluoride. The (b)(2)-dietary ingredients shall be listed according to the nomenclature specified in § 101.9 or in paragraph (b)(2)(i)(B)(2) of this section.

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(ii) * * *

(B) The amounts of vitamins and minerals, excluding sodium, shall be the amount of the vitamin or mineral included in one serving of the product, using the units of measurement and the levels of significance given in § 101.9(c)(8)(iv), except that zeros following decimal points may be dropped, and additional levels of significance may be used when the number of decimal places indicated is not sufficient to express lower amounts (e.g., the RDI for zinc is given in whole milligrams (mg), but the quantitative amount may be declared in tenths of a mg). The amount of vitamin D may, but is not required to, be expressed in IUs, in addition to the mandatory declaration in mcg. Any declaration of the amount of vitamin D in IUs must appear in parentheses after the declaration of the amount of vitamin D in mcg.

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(e) Except as provided for small and intermediate sized packages under paragraph (h)(3)(i)(2) of this section, information other than the title, headings, and footnotes shall be in uniform type size no smaller than 8 point. Type size no smaller than 6 point may be used for column headings (e.g., “Amount Per Serving” and “% Daily Value”) and for footnotes (e.g., “Percent Daily Values are based on a 2,000 calorie diet”).

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(11) * * *

(ii) Multiple vitamins for children and adults (excludes Servings Per Container which is stated in the net quantity of contents declaration):

* * * * *

(iv) Dietary supplement containing dietary ingredients with and without RDIs and DRVs:

Start Printed Page 65504

* * * * *

(12) If space is not adequate to list the required information as shown in the sample labels in paragraph (e)(11) of this section, the list may be split and continued to the right as long as the headings are repeated. The list to the right must be set off by a line that distinguishes it and sets it apart from the dietary ingredients and percent of Daily Value information given to the left. The following sample label illustrates this display:

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Start Amendment Part

4. Revise appendix B to part 101 to read as follows:

End Amendment Part

Appendix B to Part 101—Graphic Enhancements Used by the FDA

Start Printed Page 65505

Start Printed Page 65506

Start Signature

Dated: December 13, 2018.

Scott Gottlieb,

Commissioner of Food and Drugs.

End Signature End Supplemental Information

[FR Doc. 2018-27431 Filed 12-19-18; 8:45 am]

BILLING CODE 4164-01-P