After 1,333 days the FDA Says NO to Enforcing Law

On July 21, 2022 we filed a Citizen Petition with FDA requesting the agency abide by federal law in regulating pet food. Specifically we quoted numerous federal laws in reference to misleading pet food ingredient names.

Our intent with filing this Citizen Petition was to nudge the FDA (through proper procedure) to provide pet food consumers with transparency to what is included in the pet food products they purchase. We requested the FDA require pet food manufacturers to include the term ‘feed grade’ on the label if the ingredient(s) does not meet the legal requirements of food.

We provided the FDA with the example of ‘chicken’ used in pet food. Our Petition stated: “the feed grade pet food ingredient ‘chicken’ which does not conform to the Poultry Products Inspection Act holds the same common or usual name as ‘chicken’ that does conform to the Poultry Products Inspection Act – thus it is ‘confusingly similar’ to another food. Legal foundation requires it to be given its own common or usual name that distinguishes it from different foods.”

The law we quoted to FDA, that is specific to animal food states: 

“The common or usual name of a food, which may be a coined term, shall accurately identify or describe, in as simple and direct terms as possible, the basic nature of the food or its characterizing properties or ingredients. The name shall be uniform among all identical or similar products and may not be confusingly similar to the name of any other food that is not reasonably encompassed within the same name. Each class or subclass of food shall be given its own common or usual name that states, in clear terms, what it is in a way that distinguishes it from different foods.”

But…FDA said “no”. Again and again, the agency said “no”. Just one of their many no’s: “we do not think that ingredients that conform to definitions that clearly apply only to animal food are an imitation of ingredients defined by the PPIA (Poultry Products Inspection Act).”

The FDA’s response operates under the premise that when “chicken” appears on a pet food label, consumers understand it to mean “pet food chicken“—a distinct and entirely different product from the ‘chicken’ they are familiar with.

The FDA response operates on the premise that pet food consumers, despite seeing enticing labels with images of grilled or roasted chicken and the slogan “Made with Real Chicken,” understand that “real” in the context of pet food is a non-literal term.

One of the arguments we made in our Petition, was the nutritional differences between USDA inspected and passed chicken and condemned, diseased chicken. A nutritional difference between these two very different qualities of ingredients would require the inferior ‘chicken’ to have a different ingredient name. Law specific to animal food states:

Title 21, Chapter I, Subpart E, Part 501.3 Identity Labeling of Animal Food in Packaged Form
“(1) A food shall be deemed to be an imitation and thus subject to the requirements of section 403(c) of the act if it is a substitute for and resembles another food but is nutritionally inferior to that food.”
“(4) Nutritional inferiority includes:
(i) Any reduction in the content of an essential nutrient that is present in a measurable amount.”

We argued there is indeed a nutritional difference between USDA inspected and passed chicken and condemned, diseased chicken. FDA responded with:

“we have no reason to think
that there is such a difference.”

Their response – signed by FDA veterinarian Dr. William T. Flynn, Deputy Center Director – is regulatory insanity. It is insane to conclude there are no nutritional differences between condemned, diseased meat and USDA inspected and passed meat. 

The agency’s belief that millions of U.S. pet food consumers understand that images of roasted chicken or label claims like “Made with real chicken” are meaningless is both naive and absurd.

We are not done with this issue, we do not accept FDA’s absurd response. We will be consulting with trusted individuals and will decide what our response will be. When that is decided, we will alert pet owners. 

To read FDA’s full response to our Citizen Petition Click Here.

To read the initial Citizen Petition Click Here.

To share your opinion with FDA regarding this Citizen Petition, Docket No. FDA-2022-P-1643 you can email the agency at: AskCVM@fda.hhs.gov (note – reference the docket number in your email).

Susan Thixton
Pet Food Safety Advocate
Author Buyer Beware, Co-Author Dinner PAWsible
TruthaboutPetFood.com
Association for Truth in Pet Food

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