PETA Petition to FSIS to Remove Animal Raising Claims from Label Approval Process

Last month, the People for Ethical Treatment of Animals (PETA) submitted a petition to the Food Safety and Inspection Service of the U.S. Department of Agriculture (FSIS) requesting that FSIS initiate rulemaking to remove animal raising claims from the label approval process because, according to PETA, FSIS has no authority to approve animal raising claims and FSIS is not authorized to regulate on-farm animal raising conditions or activities.

So, what is going on?  The issue relates to FSIS premarket review and approval of labels for meat and poultry.  FSIS has interpreted the Federal Meat Inspection Act (FMIA) and the Poultry Products Inspection Act (PPIA) as requiring premarket label approval.  It bases this interpretation on the provisions in the FMIA and PPIA that USDA must maintain an inspection program to assure that meat and poultry products distributed to consumer are safe, wholesome, not adulterated, and properly marketed, labeled, and packaged, and that the label and labeling is not false or misleading.  For decades, FSIS has maintained that without approved labels, meat and poultry products may not be sold, offered for sale, or otherwise distributed in commerce.  Because labels are approved by FSIS, they cannot be challenged by private parties.

Over time, FSIS has issued regulations specifying that certain labels are subject to so-called generic label approval.  Specifically, under 9 C.F.R. § 412.2, labels that include “all applicable mandatory labeling features [consistent with] Federal Regulations [and] [l]abels that bear claims and statements that are defined in FSIS’s regulations or the Food Standards and Labeling Policy Book (except for natural and negative claims),and . . . comply with those regulations are “deemed to be generically approved . . . without being submitted for evaluation and approval.”  On the other hand, labels that bear so-called “special statements and claims” must be submitted to and approved by FSIS’s Labeling Program and Delivery Staff before they can be used on meat or poultry products.

The list of special statements and claims, in FSIS regulation 9 CFR 412.1(e),  includes so called “animal raising claims.” FSIS requires substantiation to support this type of claims.  In 2019, it published a guidance document that describes the evidence needed to substantiate animal raising claims. These include documentation describing the manner in which the animals are raised, a written description explaining the controls for ensuring the claim is valid, a description of product tracing and segregation (including for non-conforming product), and a copy of any applicable third-party certificates. FSIS does not visit or inspect farms to verify the documentation provided by the applicant.

In its petition, PETA argues that FSIS exceeds its authority by approving animal raising claims because the FMIA and the PPIA do not authorize FSIS to regulate on-farm animal raising/practice activities.  Consequently, FSIS is unable to verify the validity of these claims.  PETA also argues that animal raising claims such as “humanely raise” and “free to roam” are “amorphous and have a high potential for creating consumer confusion” and “can be, and are, used on products that do not exceed industry standards, despite companies’ attempts to portray them as more ‘humane’ or otherwise adhering to superior animal-welfare standards compared to other products on the market.” As a result, consumers may be misled into paying a premium for products with animal raising claims whereas such products are not different from other products in the market. The petition includes four examples that, according to PETA, illustrate that many of the animal raising claims approved by FSIS are not truthful and/or misleading.

PETA “urges FSIS to amend its regulations to no longer allow for the approval of animal raising claims on product labels.”  As mentioned above, FSIS interprets the FMIA and PPIA as mandating that FSIS review (and approve) labels.  Consequently, it appears that, if FSIS were to amend the regulation as requested, animal raising claims on meat and poultry products essentially would be prohibited.