After highlighting the most significant priorities, we provide charts (see Appendix A) that list other relevant rulemakings included on each agency’s agenda.
We caution that the dates included in the Unified Agenda1 are not commitments to act on or by the date shown and simply indicate the agencies’ aspirations. Note, for example, the dates for some planned actions have already passed. Rather than focusing on projected dates, the Unified Agenda is a valuable tool to identify the substantive issues the agencies consider to be priorities for rulemaking.
FDA Priorities
FDA’s regulatory priorities largely mirror those that were included in the Fall 2022 Unified Agenda.2 The vast majority of the rules remain in the same stage but with new dates of completion. As noted above, the projected dates are not commitments to complete the action by the identified dates, but rather reflect the agency’s goal.
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The Revocation of Authorization of Use of Brominated Vegetable Oil in Food: This proposed rule would amend the FDA’s regulations to remove the authorization of the use of brominated vegetable oil (BVO) as a food ingredient. BVO is currently authorized by a food additive regulation for use as a stabilizer in flavoring oils in fruit-flavored beverages. However, FDA has indicated that new scientific information FDA reviewed as part of its reassessment of this ingredient demonstrates that there is not a reasonable certainty of no harm from the continued use of BVO in food. (Proposed Rule: December 2023).
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Prior Notice: Adding Requirement to Submit Mail Tracking Number for Articles of Food Arriving by International Mail and Timeframe for Post-refusal and Post-hold Submissions: FDA is proposing to amend its prior notice regulations to require additional information from prior notice submitters, establish a timeframe for post-refusal submissions, and clarify the process to destroy or export refused food. (Proposed Rule: September 2023).
USDA Priorities
As with FDA, the USDA priorities largely mirror those that appeared in the Fall 2022 Agenda. As noted above, the projected dates are not commitments to complete the action by the identified dates, but rather reflect the agency’s goal. FSIS, AMS, and FNS have a handful of regulatory priorities that may be of particular interest.
FSIS
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Voluntary Labeling of FSIS-Regulated Products With U.S. Origin Claims: FSIS proposed to amend its regulations to define the conditions under which meat, poultry, or egg product labels can bear voluntary statements indicating that the product is of United States origin, such as “Product of USA,” or “Made in the USA.” The proposed rule limited the use of these statements to products derived from animals born, raised, slaughtered, and processed in the U.S. (Final Rule: May 2024).
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Labeling of Meat and Poultry Products Made Using Animal Cell Culture Technology: FSIS sought initial public comments on the labeling of meat and poultry products made using animal cell culture technology through an Advanced Notice of Proposed Rulemaking in 2021. The agency is now developing a proposed rule on the topic. (Proposed Rule: December 2023).
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Changing the Labeling Requirements for Processed Products That Contain Nitrate or Nitrite: FSIS is proposing to amend its labeling requirements for meat and poultry products to establish new definitions for “cured” and “uncured” products. Additionally, FSIS seeks to rescind regulations requiring sampling of pumped bacon for nitrosamines. (Proposed Rule: November 2023).
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Food Standards: General Principles and Food Standards Modernization: FSIS intends to publish a proposed rule establishing general principles that would act as the first step in modernizing and updating the framework for food standards. This revisits a 2005 proposed rule addressing the same issue, which would be withdrawn to address the technological advances and other changes in the food industry since 2005. FSIS indicates it is coordinating its actions with FDA (see above entry for FDA’s comparable agenda item). (Second Proposed Rule: April 2024).
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Revision of the Nutrition Facts Panels for Meat and Poultry Products and Updating Certain Reference Amounts Customarily Consumed: FSIS plans to issue a final rule that would in large part harmonize FSIS nutrition labeling regulations with FDA’s updated regulations. Currently, FSIS policy allows establishments to follow either existing FSIS nutrition labeling regulations or FDA’s updated labeling regulations. (Final Rule: September 2023).
AMS
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National Bioengineered Food Disclosure Standard; Text Message Disclosures: AMS plans to publish a proposed rule to amend the National Bioengineered Food Disclosure Standard to align with the court decision in National Grocers, et al., v. Thomas Vilsack, removing the standalone text message disclosure option.3 The proposed rule would add an additional comparable option to the electronic or digital disclosure option. (Proposed Rulemaking: August 2023).
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2020 and 2021 Annual Updates to the List of Bioengineered Foods4: AMS anticipates publishing a final rule implementing the 2020 updates to the List of BE Foods,5 in which AMS had proposed to revise the List to include sugarcane (BT insect-resistant varieties) and squash (summer, mosaic virus-resistant varieties). The agency will also seek comments on updates to the National List as part of its 2021 update, now referred to as the “second update.” (2020 Final Rule: June 2023; Second Update Advance Notice of Proposed Rulemaking: September 2023).
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Packers and Stockyards Act Rules: There are two planned proposed rules and two anticipated final rules that would expand regulations under the Packers and Stockyards Act. The Administration has positioned these rules as efforts to address economic issues in the meat and poultry supply chains. These rules appear to be a revival of an Obama-era attempt to make specific changes to how contractual relationships within the animal raising and slaughter portion of the supply chain are regulated under the Packers and Stockyards Act:
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Unfair Practices, Undue Preferences, and Harm to Competition Under the Packers and Stockyards Act: This proposed rule would further define conduct that AMS believes may violate the Act, including whether all allegations of violations of the Act must be accompanied by a showing of harm or likely harm to competition. (Proposed Rule: November 2023).
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- Inclusive Competition and Market Integrity Under the Packers and Stockyards Act: USDA proposes to identify conduct the Department considers unfair, unjustly discriminatory, or deceptive and a violation of sections 202(a) and (b) of the Act. USDA would also address the criteria and types of conduct that would be considered unduly or unreasonably preferential, advantageous, prejudicial, disadvantageous, and violations of the Act. (Final Rule: September 2023).
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- Transparency in Poultry Grower Contracting Tournaments: USDA has proposed regulations expanding the required disclosures and information currently furnished to poultry growers and sellers and to establish additional requirements for the poultry tournament system used to determine settlement payments. (Final Rule: June 2023).
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- Poultry Grower Payment Systems and Capital Improvement Systems: In tandem with its 2022 proposal on tournament systems in poultry growing arrangements (see above entry), USDA requested input on whether AMS should conduct rulemaking on additional aspects of poultry contracting through an advanced notice of proposed rulemaking. USDA now plans to issue a proposed rule based on input received on the ANPR. (Proposed Rule: July 2023).
FNS
- Child Nutrition Programs: Revisions to Meal Patterns Consistent With the 2020 Dietary Guidelines for Americans: As required by statute, USDA will propose updates to the school meal standards to be consistent with the 2020 Dietary Guidelines for Americans, which could potentially include standards related to added sugars, among others.6(Final Rule: April 2024)
TTB Priorities
TTB’s regulatory priorities are focused on labeling initiatives and updated standards of identity and definitions.
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Major Food Allergen Labeling for Wines, Distilled Spirits, and Malt Beverages: TTB will request public comment on proposals to include major allergen information on alcohol beverage products. (Proposed Rule: July 2023).
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Ingredient Labeling of Distilled Spirits, Wines, and Malt Beverages: In response to a U.S. Department of Treasury report, TTB is initiating rulemaking proposing ingredient labeling on alcohol beverage products. (Advanced Notice of Proposed Rulemaking: July 2023).
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Proposal to Allow for the Use of Molasses and Grain in Wine and to Address Sugar as a Fermentable in the Production of Wine and Beer: TTB intends to propose amending the wine and beer regulations and receive comment on the use of grain, cereal, malt, and molasses as ingredients in wine. The proposal would also address the use of sugar as a fermentable in the production of wine and beer. (Proposed Rule: March 2024)
Next Steps
We will continue to monitor the Federal Register for agency actions and will keep you notified of items of interest. Please contact us if you have any questions.
Appendix A
Please click here for a chart summarizing the key planned regulatory activities of particular interest to the food industry.
Authored by Brian Eyink, Maile Gradison, Veronica Colas, and Erin Pannek
References
1 White House Office of Management and Budget Spring 2023 Unified Agenda of Regulatory and Deregulatory Actions, available here.
2 See Hogan Lovells Update: OMB releases Fall 2022 Unified Agenda of Regulatory Actions, Hogan Lovells Engage (Jan. 12, 2023), https://www.engage.hoganlovells.com/knowledgeservices/news/omb-releases-fall-2022-unified-agenda-of-regulatory-actions.
3 For a summary of the National Grocers v. Vilsack decision, see Hogan Lovells Update: Court invalidates text message option under Bioengineered Food Disclosure Standard, Hogan Lovells Engage (September 15, 2022), https://www.engage.hoganlovells.com/knowledgeservices/news/court-invalidates-text-message-option-under-bioengineered-food-disclosure-standard.
4 2021 Annual Updates to the List of Bioengineered Foods was renamed Second Update to the List of Bioengineered Food in the Spring 2023 Unified Agenda.
5 For more information on the 2020 proposed rule updating the List of Bioengineered Foods, see Hogan Lovells Update: Proposed updates to list of bioengineered foods for National Bioengineered Food Disclosure Standard, Hogan Lovells Engage (August 2, 2022) https://www.engage.hoganlovells.com/knowledgeservices/news/proposed-updates-to-list-of-bioengineered-foods-for-national-bioengineered-food-disclosure-standard
6 For more information on the proposed rule updating school meal standards, see Hogan Lovells Update: USDA proposed rule to update school nutrition standards, Hogan Lovells Engage (February 8, 2023), https://www.engage.hoganlovells.com/knowledgeservices/news/usda-issues-proposed-rule-to-update-school-nutrition-standards.