Ervin Cohen & Jessup LLP

On June 11, 2021, the FDA issued a final rule to amend the standard of identity for yogurt. The rule will become effective on July 12, 2021. 

A standard of identity describes in detail what a food product must contain, how it must be proportioned and in some cases how it must be manufactured. The FDA has more than 280 standards for a wide variety of food products.  As part of the FDA’s Nutrition Innovation Strategy, the agency has been considering standards of identity and particularly looking to revoke or update standards when they are inconsistent with modern manufacturing processes or create barriers to innovation.

Prior to the final rule, the FDA had set three different standards of identity for yogurt, low-fat yogurt and nonfat yogurt. Under the final rule, the standards of identity for low-fat yogurt and nonfat yogurt are revoked and all three products fall under one more flexible standard of identity.

The FDA stated that its action was, in part, a response to a citizen petition submitted by the National Yogurt Association in February of 2000.  That petition requested that the FDA revoke the standards of identity for low-fat yogurt and nonfat yogurt and amend the standard of identity for yogurt.

The FDA stated that the intent of the rule was to modernize the yogurt standard to “allow for technological advances while preserving the basic nature and essential characteristics of yogurt” and promoting honesty and fair dealing for consumers.

The FDA constituent update on the rule states: “The final rule expands the allowable ingredients in yogurt, including sweeteners such as agave, and reconstituted forms of basic dairy ingredients. It establishes a minimum amount of live and active cultures yogurt must contain to bear the optional labeling statement “contains live and active cultures” or similar statement. For yogurt treated to inactivate viable microorganisms, the statement  “does not contain live and active cultures” is required on the label. Additionally, the final rule supports the many innovations that have already been made in the yogurt marketplace, including continuing to allow manufacturers to fortify yogurts, such as adding vitamins A and D, as long as they meet fortification requirements. The rule also allows various styles or textures of yogurt as long as they meet requirements in the standard of identity.”

The agency is accepting objections and requests for a hearing until July 12, 2021.

The compliance date of this final rule is January 1, 2024, which has been set as the uniform compliance date for all final food labeling regulations issued in 2021 and 2022.

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