Chemicals | jgersen | February 11, 2016


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by jgersen Show/Hide
The 20th century witnesses a remarkable revolution in food production. Food processing preservation, packaging, and distribution all transformed. Although the local food movement is in many ways a reaction against these developments, the ability to preserve and transport food across enormous distances greatly changed not just the way we eat, but what we eat. One of the key facilitators of these shifts was new chemicals, ingredients and processing agents. Many of these were introduced into the food supply after World War II in the middle of the century. Although FDA did not require any advance approval for the use of food chemical technologies, both the public and Congress began growing increasingly concerned about the safety of hard-to-pronounce and largely unknown ingredients in food. Representative James Delaney of New York chaired a well-known select committee to examine their escalated use of chemicals in food. After extensive hearings, Congress eventually enacted the Food Pesticide Amendment (1954), Food Additive Amendment (1958), and the Color Additives Amendment (1960). Together, these measures increased FDA control over the ever-growing list of chemicals in food. Perhaps most famous of all these measures is what is known as the Delaney Clause, Food Additives Amendment of 1958, 72 Stat. 1784, 1785 (1958), codified at 21 U.S.C. 348© (3). The Delaney Clause provides that “no additive shall be deemed to be safe if it is found to induce cancer when ingested by man or animal, or if it is found, after tests which are appropriate for the evaluation of the safety of food additives, to induce cancer in man or animal.” This next case considers the meaning of the Delaney Clause. EDIT PLAYLIST INFORMATION DELETE PLAYLIST

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  1. 2 Show/Hide More GRAS
    Original Creator: jgersen

    Recall that the section 321(s) which defines the term “food additive” excludes substances Generally Recognized as Safe. The provision is reproduced below in its entirety.

    The term “food additive” means any substance the intended use of which results or may reasonably be expected to result, directly or indirectly, in its becoming a component or otherwise affecting the characteristics of any food (including any substance intended for use in producing, manufacturing, packing, processing, preparing, treating, packaging, transporting, or holding food; and including any source of radiation intended for any such use), if such substance is not generally recognized, among experts qualified by scientific training and experience to evaluate its safety, as having been adequately shown through scientific procedures (or, in the case of a substance used in food prior to January 1, 1958, through either scientific procedures or experience based on common use in food) to be safe under the conditions of its intended use; except that such term does not include—

    (1) a pesticide chemical residue in or on a raw agricultural commodity or processed food; or
    (2) a pesticide chemical; or
    (3) a color additive; or
    (4) any substance used in accordance with a sanction or approval granted prior to September 6, 1958, pursuant to this chapter, the Poultry Products Inspection Act [21 U.S.C. 451 et seq.] or the Meat Inspection Act of March 4, 1907, as amended and extended [21 U.S.C. 601 et seq.];
    (5) a new animal drug; or
    (6) an ingredient described in paragraph (ff) in, or intended for use in, a dietary supplement.
    21 U.S.C. 321(s).

    Two groups of substances qualify as GRAS. First, substances used in food prior to 1958 are grandfathered and automatically considered GRAS. 21 C.F.R. 170.30©. The FDA later extended the grandfathered substances to include substances commonly used in foods prior to 1958 outside the United States. 21 C.F.R. 170.30©(2).

    Grandfathering, or exempting an already existing class of substances or regulated parties like factories, is a common practice in regulatory policy. It is, however, worth pausing to consider the historical sequence. A massive increase in the use of chemicals in food prompts public concern, congressional investigations, and ultimately federal legislation. The federal legislation governs virtually chemicals added to foods, with one main exception—those chemicals added that are recognized as safe. Which chemicals are generally recognized as safe? All chemicals that are being commonly added to foods in the United States (and soon thereafter, anywhere in the world). Thus, the legislation stopped virtually none of the chemicals that gave rise to fear and legislation from being added to foods in the future. The the use of grandfathering as a regulatory strategy and the use of commonality as a marker of safety combined to allow almost all historical chemical additives to continue to be used in foods.

    In addition to chemicals commonly used in foods prior to 1958, a second group of substances are classified as GRAS based on scientific determination via one of two routes. First, a party may request that FDA review scientific information and conclude that a substance is GRAS. Second, a party can engage in “self-determination”—a process which typically involves convening a group of GRAS experts who review all available information about a substance and proper a report concluding that the substance is safe. The latter involves some risk that FDA will agree, but it also allows for the immediate marketing of the food and avoids what can be a time consuming pre approval process for food additives.

    1. 2.1 Show/Hide More Food Safety: FDA Should Strengthen Its Oversight of Food Ingredients Determined to Be Generally Recognized as Safe
      Original Creator: jgersen

      In 2010, The United States Government Accountability Office published GaO 10-246, critiquing the FDA's GRAS process. The full report is available at The report's highlights are below:

      The Food and Drug Administration (FDA), which is responsible for ensuring the safety of most of the U.S. food supply, is not required to review substances, such as spices and preservatives, added to food that are generally recognized as safe (GRAS) for their intended use. Currently, companies may determine a substance is GRAS without FDA's approval or knowledge. However, a few substances previously considered GRAS have later been banned; and concerns have been raised about the safety of other GRAS substances, including those containing engineered nanomaterials, materials manufactured at a tiny scale to take advantage of novel properties. GAO was asked to review the extent to which (1) FDA's oversight of new GRAS determinations helps ensure the safety of these substances, (2) FDA ensures the continued safety of current GRAS substances, and (3) FDA's approach to regulating engineered nanomaterials in GRAS substances helps ensure the safety of the food supply. GAO reviewed FDA data on GRAS substances and interviewed a range of stakeholders, among other things.
      FDA's oversight process does not help ensure the safety of all new GRAS determinations. FDA only reviews those GRAS determinations that companies submit to the agency's voluntary notification program—the agency generally does not have information about other GRAS determinations companies have made because companies are not required to inform FDA of them. Furthermore, FDA has not taken certain steps that could help ensure the safety of GRAS determinations, particularly those about which the agency has not been notified. FDA has not issued guidance to companies on how to document their GRAS determinations or monitored companies to ensure that they have conducted GRAS determinations appropriately. Lastly, FDA has yet to issue a final regulation for its 1997 proposed rule that sets forth the framework and criteria for the voluntary notification program, potentially detracting from the program's credibility. FDA is not systematically ensuring the continued safety of current GRAS substances. While, according to FDA regulations, the GRAS status of a substance must be reconsidered as new scientific information emerges, the agency has not systematically reconsidered GRAS substances since the 1980s. FDA officials said they keep up with new developments in the scientific literature and, on a case-by-case basis, information brought to the agency's attention could prompt them to reconsider the safety of a GRAS substance. However, FDA has largely not responded to concerns about GRAS substances, such as salt and the trans fats in partially hydrogenated vegetable oils, that individuals and consumer groups have raised through 11 citizen petitions submitted to the agency between 2004 and 2008. In fact, FDA has decided on the validity of these concerns in only 1 of 11 cases. In addition, FDA does not know to what extent, or even whether, companies track evolving scientific information about their GRAS substances. FDA's approach to regulating nanotechnology allows engineered nanomaterials to enter the food supply as GRAS substances without FDA's knowledge. While some uses of engineered nanomaterials have the potential to help ensure food safety, uncertainties remain about how to determine their safety in food. After reviewing the uncertainties associated with the safety of engineered nanomaterials, FDA has decided that it does not need additional authority to regulate products containing such materials. Rather, FDA encourages, but does not require, companies considering using engineered nanomaterials in food to consult with the agency regarding whether such substances might be GRAS. Because GRAS notification is voluntary and companies are not required to identify nanomaterials in their GRAS substances, FDA has no way of knowing the full extent to which engineered nanomaterials have entered the U.S. food supply as part of GRAS substances. In contrast to FDA's approach, all food ingredients that incorporate engineered nanomaterials must be submitted to regulators in Canada and the European Union before they can be marketed.

    2. 2.2 Show/Hide More Substances Generally Recognized as Safe, Final Rule, 8 Fed. Reg. 54960 (Aug. 17, 2016)
      Original Creator: jgersen


      The Food and Drug Administration (FDA or we) is issuing a final rule that amends and clarifies the criteria in our regulations for when the use of a substance in food for humans or animals is not subject to the premarket approval requirements of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) because the substance is generally recognized as safe (GRAS) under the conditions of its intended use. We also are amending our regulations to replace the voluntary GRAS affirmation petition process with a voluntary notification procedure under which any person may notify us of a conclusion that a substance is GRAS under the conditions of its intended use. The clarified criteria for GRAS status should help stakeholders draw more informed conclusions about whether the intended conditions of use of a substance in food for humans or animals complies with the FD&C Act, and the notification procedure will enable stakeholders to be aware of whether we have questioned the basis of a conclusion of GRAS status.

      Executive Summary

      Purpose and Coverage of the Rule

      Although we have premarket review authority over food additives, a food manufacturer can intentionally add a substance to human food or animal food without our premarket review or approval if the substance is generally recognized, among qualified experts, to be safe under the conditions of its intended use (GRAS). Since the 1970s, we have had regulations clarifying the statutory provision for eligibility for classification as GRAS. We also have had regulations governing a procedure for any person to voluntarily submit to us a petition asking us to affirm the GRAS status of a substance under the conditions of its intended use, and for us to engage in an intensive rulemaking process in response to that petition. Experience has shown that our regulations need further clarification to help stakeholders understand when a substance is eligible for classification as GRAS in human food or animal food under the conditions of its intended use. Experience also has shown that streamlining our evaluation of conclusions of GRAS status will enable us to evaluate more, and higher priority, substances. We are issuing this final rule to amend and clarify the criteria in our regulations for when a substance is GRAS under the conditions of its intended use in human food or animal food, and to replace the voluntary administrative procedure for petitioning us to affirm the GRAS status of a use of a substance in human food or animal food with a voluntary administrative procedure for notifying us about a conclusion that a substance is GRAS under the conditions of its intended use in human food or animal food.

      Summary of the Major Provisions of the Rule

      The final rule clarifies the criteria for the use of a substance to be eligible for classification as GRAS and establishes a new administrative procedure for any person to notify us of the basis for a conclusion that a substance is GRAS under the conditions of its intended use. With respect to criteria for eligibility for classification as GRAS, in the final rule we clarify that:

      • A substance cannot be classified as GRAS under the conditions of its intended use if the available data and information do not satisfy the safety standard for a food additive under the FD&C Act;
      • General recognition of safety requires common knowledge, throughout the expert scientific community knowledgeable about the safety of substances directly or indirectly added to food, that there is a reasonable certainty that the substance is not harmful under the conditions of its intended use;
      • “Common knowledge” can be based on either “scientific procedures” or on experience based on common use of a substance in food prior to January 1, 1958; and
      • General recognition of safety through scientific procedures must be based upon the application of generally available and accepted scientific data, information, or methods, which ordinarily are published, as well as the application of scientific principles, and may be corroborated by the application of unpublished scientific data, information, or methods.

      With respect to the procedure for submitting a GRAS notice, we provide:

      • Definitions for certain terms, including amendment, GRAS notice, notified substance, notifier, qualified expert, supplement, we/our/us, and you/your;
      • A clear statement of the opportunity for any person to submit a GRAS notice;
      • Information on available formats (electronic and paper) and where to send a GRAS notice;
      • What data and other information may be incorporated into a GRAS notice;
      • General provisions applicable to a GRAS notice;
      • Specific information you must provide in your GRAS notice, including:

      ○ Signed statements and a certification (Part 1);

      ○ The identity, method of manufacture, specifications, and physical or technical effect of the notified substance (Part 2);

      ○ Dietary exposure (Part 3);

      ○ Self-limiting levels of use, in circumstances where the amount of the notified substance that can be added to human food or animal food is limited because the food containing levels of the notified substance above a particular level would become unpalatable or technologically impractical (Part 4);

      ○ The history of consumption of the substance for food use by a significant number of consumers (or animals in the case of animal food) prior to January 1, 1958, if a conclusion of GRAS status is based on common use of the substance in food prior to 1958 (Part 5);

      ○ A narrative that provides the basis for your conclusion of GRAS status, including why the scientific data, information, methods, and principles Start Printed Page 54962described in the notice provide a basis for your conclusion that the notified substance is generally recognized, among qualified experts, to be safe under the conditions of its intended use (Part 6); and

      ○ A list of the data and information that you discuss in the narrative of your GRAS notice, specifying which of these data and information are generally available, and which of these data and information are not generally available (Part 7); and

      • Process for you to submit an amendment to your GRAS notice; and
      • Process for you to request that we cease to evaluate your GRAS notice.

      With respect to our administration of a GRAS notice, we specify:

      • Information about how we will file a GRAS notice, respond to it, and send subsequent correspondence about it;
      • Our commitment to respond within 180 days of filing of a GRAS notice, with a potential to extend our response timeframe by another 90 days;
      • Our procedures in the event the intended conditions of use of the notified substance include use in a product subject to regulation by the Food Safety and Inspection Service (FSIS) of the U.S. Department of Agriculture (USDA); and
      • Provisions governing the public disclosure of a GRAS notice, including the actions we take to make some information regarding a GRAS notice readily accessible to the public.

      As of the effective date of the final rule, we will close the docket for any pending GRAS affirmation petition. The petitioner may incorporate the applicable petition into a new GRAS notice.


      The final rule eliminates the petition process to affirm that a substance is GRAS under the conditions of its intended use and replaces that petition process with a GRAS notification procedure. We estimate that over 10 years with a 7 percent discount rate, the present value of the total costs of the final rule range from $0.9 million to $3.3 million; with a 3 percent discount rate, the present value of the total costs range from $0.9 million to $3.4 million. The annualized costs of the rule range from $0.1 million to $0.4 million with a 7 percent discount rate and range from $0.1 million to $0.5 million with a 3 percent discount rate. We do not quantify the benefits of the final rule, but assume that firms will only participate in the GRAS notification procedure when they expect to receive a non-negative private benefit. The GRAS notification procedure will allow us to complete our evaluation within the timelines specified in the final rule. The following table includes a summary of the benefits and costs of the final rule.

      Summary of Benefits and Costs of the Final Rule

      Total benefitsPresent value of total costs with 7 percent discount rate ($ mil)Present value of total costs with 3 percent discount rate ($ mil)Total annualized costs over 10 years with 7 percent discount rate ($ mil)Total annualized costs over 10 years with 3 percent discount rate ($ mil)Not estimated$0.9 to $3.3$0.9 to $3.4$0.1 to $0.4$0.1 to $0.5.

      <p>1. The 2016 Final Rule was FDA's response to some of the long-standing criticism of the <span class="caps">GRAS</span> system and its administration. Note that the <span class="caps">GRAS</span> Rule implements very few of the reforms advocated by the 2010 <span class="caps">GAO</span> Report.</p> <p>2. The main alteration of the 2016 <span class="caps">GRAS</span> Rule was t replace the existing <span class="caps">GRAS</span> Petition process with a new <span class="caps">GRAS</span> Notification process. Under the old petition process, regulated parties could petition <span class="caps">FDA</span> to affirm that a given product was <span class="caps">GRAS</span> given its intended use. In response, the <span class="caps">FDA</span> would typically engage in what could be a fairly elaborate and time consuming rulemaking process, evaluating the petition. Under the new <span class="caps">GRAS</span> Notification procedures, regulated parties may notify <span class="caps">FDA</span> that a product is <span class="caps">GRAS</span>, according to the standards in the regulation.</p>
  2. 3 Show/Hide More Genetically Modified Food & GRAS
    Original Creator: jgersen

    Genetically Modified foods are discussed elsewhere in this casebook as well. Our concern in this section is the relationship between GM food and safety. As should be no surprise by this point in the book, federal administrative responsibility for addressing genetic modification of foods is split among multiple agencies. The FDA has authority for food safety issues having to do with the GE plants and animals. The EPA has authority to address health and environmental effects and pest-protected plants. The USDA has authority for the effect of GM plans on other plants and animals.

    In the 1980s, President Reagan created the Domestic Policy Council Working Group to develop a unifying framework for biotechnology. Guide to U.S. Regulation of Genetically Modified Food and Agricultural Biotechnology Products 5, Pew Initiative on Food and Biotechnology (2001). The process resulted in the “Coordinated Framework for the Regulation of Biotechnology.” The organizing principle of the Coordinated Framework was that existing legal and institutional structure could adequately address any concerns about genetic modification.

    1. 3.1 Show/Hide More FDA 1992 GRAS Strategy
      Original Creator: jgersen

      In 1992, FDA announced a new policy under which the agency would presume that all GE foods were GRAS and therefore not subject to regulation as food additives. See Statement of Policy—Foods Derived from new Plant Varieties, 57 Fed. Reg 22984, 22986 (May 29, 1992). The policy did not require companies to submit products for review prior to bringing them to market.

      The key premise of FDA's policy is that the safety is best protected by focusing not on the means of production—genetic engineer or conventional techniques—but rather on the characteristics and features of a food. This so-called “product/process” distinction has resulted in the “substantial equivalence” doctrine. If the GE product is substantially the same as its conventional equivalent, it is not subject to differential regulation. Rather, the FDA simply advises that producers voluntarily consult with the agency prior to marketing.

  3. 4 Show/Hide More Pesticides
    Original Creator: jgersen

    Pesticides are “any subsatnce or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest.”  7 U.S.C 136(u).  Like other aspects of food law, responsibility for pesticides is split between sevearl federal agencies including the FDA, EPA, and USDA.  The EPA regualtes pesticides by virtue of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which was enacted in 1947. The statute governs the sale, distribution and use of pesticides and operates mainly through a registration mechanism.  No pesticide can be legally sold or distributed without first being registered by EPA.  EPA may only register a pesticide if the agency determines the pesticide will not cause “reasonable adverse effects on the environment”  7 U.SC 136(a). Once registered, FDA and USDA monitor “tolerances” established by EPA.

    The problem of pesticides for food safety is that pesticide residue may remain in or on food.  Wehth4er from direct treatment of a crop or processing or crop rotation or run off or spray drift or livestock eating feed with residues, pesticide residue finds its way into all manners of food for human consumption.  After years of increased concern about the health effects of pesticide residues, in 1996 Congtress passsed the Food Quality Protection Act (FQPA).  The Act amended the FDCA and FIFRa, mandating a single standard for pesticide reisdue in food and focused attention on the particular vulnerability of children to pesticides.  110 Stat 1489, 1511 (1996).  

  4. 5 Show/Hide More Animal Drugs
    Original Creator: jgersen
    Many animals raised for food are administered antibiotics to either prevent or treat disease. When an animal receives a drug, all of the bacteria in and on the animal are also exposed to the drug. Exposed bacteria can become resistant over time, which means that those drugs will no longer be effective against those bacteria. In the past several decades, the public health community has grown increasingly concerned about growing antibiotic resistance and the use of antibiotics for animals. Many other animal drugs, however, may also find their way into the human food supply.

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