CODIFYING USEFUL REGULATORY DEFINITIONS ACT; Congressional Record Vol. 164, No. 201
(House of Representatives - December 20, 2018)

Text available as:

Formatting necessary for an accurate reading of this text may be shown by tags (e.g., <DELETED> or <BOLD>) or may be missing from this TXT display. For complete and accurate display of this text, see the PDF.


[Pages H10425-H10427]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              CODIFYING USEFUL REGULATORY DEFINITIONS ACT

  Mr. GUTHRIE. Mr. Speaker, I move to suspend the rules and pass the 
bill (S. 2322) to amend the Federal Food, Drug, and Cosmetic Act to 
define the term natural cheese.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                                S. 2322

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Codifying Useful Regulatory 
     Definitions Act'' or the ``CURD Act''.

     SEC. 2. FINDINGS.

       Congress finds as follows:
       (1) There is a need to define the term ``natural cheese'' 
     in order to maintain transparency and consistency for 
     consumers so that they may differentiate ``natural cheese'' 
     from ``process cheese''.
       (2) The term ``natural cheese'' has been used within the 
     cheese making industry for more than 50 years and is well-
     established.

     SEC. 3. DEFINITION OF NATURAL CHEESE.

       (a) Definition.--Section 201 of the Federal Food, Drug, and 
     Cosmetic Act (21 U.S.C. 321) is amended by adding at the end 
     the following:
       ``(ss)(1) The term `natural cheese' means cheese that is a 
     ripened or unripened soft, semi-soft, or hard product, which 
     may be coated, that is produced--
       ``(A) by--
       ``(i) coagulating wholly or partly the protein of milk, 
     skimmed milk, partly skimmed milk, cream, whey cream, or 
     buttermilk, or any combination of such ingredients, through 
     the action of rennet or other suitable coagulating agents, 
     and by partially draining the whey resulting from the 
     coagulation, while respecting the principle that cheese-
     making results in a concentration of milk protein (in 
     particular, the casein portion), and that consequently, the 
     protein content of the cheese will be distinctly higher than 
     the protein level of the blend of the above milk materials 
     from which the cheese was made; or
       ``(ii) processing techniques involving coagulation of the 
     protein of milk or products obtained from milk to produce an 
     end-product with similar physical, chemical, and organoleptic 
     characteristics as the product described in subclause (i); 
     and
       ``(iii) including the addition of safe and suitable non-
     milk derived ingredients of the type permitted in the 
     standards of identity described in clause (B) as natural 
     cheese; or
       ``(B) in accordance with standards of identity under part 
     133 of title 21, Code of Federal Regulations (or any 
     successor regulations), other than the standards described in 
     subparagraph (2) or any future standards adopted by the 
     Secretary in accordance with subparagraph (2)(I).
       ``(2) Such term does not include--
       ``(A) pasteurized process cheeses as defined in section 
     133.169, 133.170, or 133.171 of title 21, Code of Federal 
     Regulations (or any successor regulations);
       ``(B) pasteurized process cheese foods as defined in 
     section 133.173 or 133.174 of title 21, Code of Federal 
     Regulations (or any successor regulations);
       ``(C) pasteurized cheese spreads as defined in section 
     133.175, 133.176, or 133.178 of title 21, Code of Federal 
     Regulations (or any successor regulations);
       ``(D) pasteurized process cheese spreads as defined in 
     section 133.179 or 133.180 of title 21, Code of Federal 
     Regulations (or any successor regulations);
       ``(E) pasteurized blended cheeses as defined in section 
     133.167 or 133.168 of title 21, Code of Federal Regulations 
     (or any successor regulations);
       ``(F) any products comparable to any product described in 
     any of clauses (A) through (E); or
       ``(G) cold pack cheeses as defined in section 133.123, 
     133.124, or 133.125 title 21, Code of Federal Regulations (or 
     any successor regulations);
       ``(H) grated American cheese food as defined in section 
     133.147 of title 21, Code of Federal Regulations (or any 
     successor regulations); or
       ``(I) any other product the Secretary may designate as a 
     process cheese.
       ``(3) For purposes of this paragraph, the term `milk' has 
     the meaning given such term in section 133.3 of title 21, 
     Code of Federal Regulations (or any successor regulations) 
     and includes the lacteal secretions from animals other than 
     cows.''.
       (b) Labeling.--Section 403 of the Federal Food Drug and 
     Cosmetic Act (21 U.S.C. 343) is amended by adding at the end 
     the following:
       ``(z) If its label or labeling includes the term `natural 
     cheese' as a factual descriptor of a category of cheese 
     unless the food meets the definition of natural cheese under 
     section 201(ss), except that nothing in this paragraph shall 
     prohibit the use of the term `natural' or `all-natural', or a 
     similar claim or statement with respect to a food in a manner 
     that is consistent with regulations, guidance, or policy 
     statements issued by the Secretary.''.
       (c) National Uniformity.--Section 403A(a)(2) of the Federal 
     Food, Drug, and Cosmetic Act (21 U.S.C. 343-1(a)(2)) is 
     amended by striking ``or 403(w)'' and inserting ``403(w), or 
     403(z)''.
  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Kentucky (Mr. Guthrie) and the gentleman from New Jersey (Mr. Pallone) 
each will control 20 minutes.
  The Chair recognizes the gentleman from Kentucky.


                             General Leave

  Mr. GUTHRIE. Mr. Speaker, I ask unanimous consent that all Members 
may have 5 legislative days in which to revise and extend their remarks 
and include extraneous material in the Record on the bill.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Kentucky?
  There was no objection.
  Mr. GUTHRIE. Mr. Speaker, I yield myself such time as I may consume.

[[Page H10426]]

  Mr. Speaker, before us today is a bill to define the term ``natural 
cheese.'' The House sponsor is our Speaker from Wisconsin, obviously, 
from the cheese State and the dairy State. What we are debating is S. 
2322, the CURD Act.
  Mr. Speaker, I ask my colleagues to support its passage, and I 
reserve the balance of my time.
  Mr. PALLONE. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I rise in opposition to the bill we are considering 
under suspension of the rules, S. 2322, the Codifying Useful Regulatory 
Definitions Act, or the CURD Act.
  This bill has not proceeded through regular order and codifies into 
the Federal Food, Drug, and Cosmetic Act a highly prescriptive 
definition of ``natural cheese'' that should be determined by the FDA, 
not by Congress.
  This legislation creates a statutory definition for a specific 
category of cheese and expressly distinguishes what shall be considered 
natural cheese from the other standards of identity for processed 
cheese currently defined in regulation. The bill then codifies these 
regulatory standards of identity into the statute and expressly 
preempts any non-Federal definition of the term ``natural cheese.''
  The FDA has the authority to define this term, yet proponents of this 
legislation prefer legislative expediency over sound regulatory 
decisionmaking. Supporters insist that this definition is needed in 
statute immediately to assure it quickly applies. However, instead of 
waiting to proceed through regular order or following the regulatory 
process, stakeholders are asking for an immediate statutory change 
because of ongoing litigation that this bill will help to resolve for 
some stakeholders.
  Mr. Speaker, I am concerned that by rushing this legislation through 
we have not been given adequate time to consider the implications for 
this change or how this definition might impact consumers and other 
industry stakeholders. The FDA is best positioned to consider the 
public health impacts of defining this term and how it would interact 
with other agency efforts regarding nutrition labeling, such as a 
broader definition for the term ``natural.''
  Additionally, I am concerned by the precedent this legislation 
creates and believe that passing this bill only encourages stakeholders 
to seek additional statutory changes or definitional clarity for the 
products when they believe the FDA has not acted as expeditiously as 
they wish or when they are facing litigation.
  We should be making changes to the Federal statute when they are 
necessary and in order to protect the public health, not when industry 
is seeking a favorable outcome that could be achieved through 
regulatory process. I do not believe this change is warranted in this 
circumstance.
  Finally, Mr. Speaker, I strongly believe that legislation like the 
CURD Act should be considered through regular order, and I am opposed 
to this bill, given that the House of Representatives has held no 
hearings on this issue and has not marked up the bill under 
consideration today. The Senate passed this bill in the dead of night, 
with no discussion or debate on the floor. I believe we are abdicating 
our duty to fully consider the implications of this statutory change if 
we pass this bill today.
  On the substance, Mr. Speaker, the Center for Science in the Public 
Interest, Consumer Reports, and The Good Food Institute are all opposed 
to this legislation and have raised serious concerns about the impact 
of this change on consumer confusion and transparency. I include in the 
Record letters in opposition to the bill from all three.
                                                Center for Science


                                       in the Public Interest,

                                Washington, DC, December 19, 2018.
       Dear Member: The Center for Science in the Public Interest 
     writes to urge you to oppose the CURD Act (H.R. 4828, S. 
     2322). This misguided bill would define ``natural cheese'' in 
     a way that actually muddles, rather than clarifies, the term. 
     For example, it would allow the use of artificial colors and 
     additives in ``natural cheese'' and would also make labeling 
     for cheese inconsistent with U.S. Department of Agriculture 
     (USDA) labeling requirements and possibly also with the Food 
     and Drug Administration's (FDA's) labeling requirements for 
     other ``natural'' foods. The bill could also prevent the term 
     ``natural'' from being used on non-dairy cheese alternatives 
     that may otherwise rightly be considered natural by 
     consumers.
       The stated purpose of the bill is to draw a clear line for 
     consumers between ``natural cheese'' and processed cheese. 
     Yet we have seen no evidence that consumers are confusing 
     processed cheese with natural cheese in the marketplace. The 
     FDA's current standards of identity for processed cheese 
     types already require that these cheeses include a specific 
     statement of identity on the label indicating that they are 
     ``process cheese.'' And there are currently strong incentives 
     for the manufacturers of process cheese to avoid ``natural'' 
     claims, as this could expose cheesemakers to liability.
       Rather than protecting consumers, the bill would confuse 
     them by permitting misleading ``natural'' claims on products 
     that most Americans would not consider natural. For example, 
     a nationally representative telephone survey conducted in May 
     2018 by Consumer Reports found that more than 80 percent of 
     consumers say ``natural'' should mean no artificial 
     ingredients were used. Yet the CURD Act allows for the use of 
     synthetic food dye, artificial flavors, and other artificial 
     additives in so-called ``natural cheese.'' Similarly, an 
     overwhelming majority of Americans surveyed felt that use of 
     the term ``natural'' should be reserved for foods that deploy 
     natural agricultural practices to produce the food's 
     ingredients, including by limiting the use of hormones, 
     pesticides, and antibiotics. In contrast, the bill would 
     allow the term ``natural cheese'' to appear irrespective of 
     the agricultural practices used to produce the cheese's 
     ingredients.
       The bill would also make labeling for ``natural cheese'' 
     inconsistent with USDA and with likely future FDA 
     requirements for ``natural'' on food labels in general. The 
     USDA currently permits the use of the term ``natural'' on 
     products that contain no artificial ingredient or added color 
     and which are only minimally processed. In addition, 
     understanding that ``natural'' can have many meanings, the 
     USDA requires a brief statement of meaning on labels to avoid 
     confusion, stating, that the food is ``*no more than 
     minimally processed and contains no artificial ingredients.'' 
     The FDA is also currently considering adopting a definition 
     of ``natural'' and may create similar requirements based on 
     comments in its public docket on the issue. Yet the bill 
     would authorize the claim ``natural cheese'' to be used on 
     cheese in a manner that fails to align with either the USDA's 
     current rules or prospective FDA requirements, leading to 
     inconsistency and confusion across the marketplace.
       Finally, the bill defines ``natural cheese'' in a manner 
     that could be interpreted to prohibit use of the term on non-
     dairy alternatives intended for consumers who are vegan, 
     lactose intolerant, or who otherwise wish to avoid dairy 
     cheeses. Use of the term ``natural'' should not be prohibited 
     on these products, provided the products otherwise meet 
     consumer expectations for use of this term.
       The FDA is currently working on a definition of ``natural'' 
     that would be non-misleading, based on consumer 
     understanding, and apply uniformly to all FDA-regulated 
     foods, including cheese. Congress should not act prematurely 
     to carve out a definition for ``natural cheese'' before the 
     agency has taken action to define ``natural'' for other 
     products.
       For these reasons, we urge you to vote ``no'' on the CURD 
     Act.
           Sincerely,
     Sarah Sorscher,
       Deputy Director of Regulatory Affairs, Center for Science 
     in the Public Interest.
                                  ____



                                             Consumer Reports,

                                                December 20, 2018.
     House of Representatives,
     Washington, DC.
       Dear Representative: Consumer Reports (CR), an independent, 
     nonprofit member organization that works side by side with 
     consumers for truth, transparency, and fairness in the 
     marketplace, urges you to vote no on S. 2322, the Codifying 
     Useful Regulatory Definitions (CURD) Act. This bill would 
     only add to consumer confusion at the supermarket and 
     undermine ongoing efforts to make food labeling clearer and 
     more consistent.
       S. 2322 would amend the Federal Food, Drug, and Cosmetic 
     Act to set a definition of ``natural cheese'' and prohibit 
     food from being labeled as ``natural cheese'' unless it meets 
     that definition. Unfortunately, this seemingly mundane bill 
     would allow cheese to be labeled ``natural'' even if the 
     cheese includes artificial ingredients or synthetic 
     substances, such as yellow food dye, or if the cheese was 
     produced using methods or pesticides that consumers do not 
     consider ``natural'' according to our recent survey.
       Generally, S. 2322 would permit misleading food labeling on 
     cheese that is inconsistent with consumers' understanding of 
     the term ``natural.'' According to Consumer Reports' 
     nationally representative April 2018 survey of 1,014 U.S. 
     residents, most Americans think ``natural'' should mean: (1) 
     that no artificial ingredients were used (81%); (2) that no 
     added hormones were used during food production (81%); and 
     (3) that no chemical pesticides were used during food 
     production (79%). The CURD Act would allow the label 
     ``natural cheese'' on products with any of these 
     characteristics.
       We also oppose S. 2322 because it would undermine ongoing 
     work at the Food and Drug Administration (FDA) to define 
     ``natural''

[[Page H10427]]

     through a process that prioritizes the public interest and 
     involves the input of all stakeholders. This effort intends 
     to define the term ``natural'' in a way that is not 
     misleading and based on consumer understanding, and that 
     applies to all foods in the marketplace overseen by the 
     agency. We support this initiative, especially because our 
     April 2018 survey found that 88% of Americans think that all 
     companies should meet the same standard for the ``natural'' 
     label. Congress should not short-circuit this important work 
     by setting a special definition of ``natural cheese.''
       The CURD Act ultimately places the interests of cheese 
     producers ahead of the broad need for consumers to understand 
     what they're buying and feeding their families. We urge you 
     to support a clear, consistent, and accountable food 
     marketplace for consumers, and vote no on S. 2322.
           Sincerely,
     Jean Halloran,
       Director, Food Policy Initiatives Consumer Reports.
     Charlotte Vallaeys,
       Senior Policy Analyst Consumer Reports.
     William Wallace,
       Senior Policy Analyst, Consumer Reports.
                                  ____



                                      The Good Food Institute,

                                Washington, DC, December 19, 2018.
     Hon. Greg Walden,
     Chairman, House Committee on Energy and Commerce,
     Hon. Frank Pallone, Jr.,
     Ranking Member, House Committee on Energy and Commerce, 
         Washington D.C.
     Re Opposition to the Codifying Useful Regulatory Definitions 
         Act (``CURD Act'').

       Dear Chairman Walden and Rep. Pallone: The Good Food 
     Institute (``GFI'') is a 501(c)(3) nonprofit organization 
     that serves as a think tank and accelerator for plant-based 
     foods and cell-based meat. GFI is comprised of scientists, 
     entrepreneurs, lawyers, and policy experts focused on using 
     food innovation and markets to create a more sustainable food 
     supply. More specifically, we support policies that ensure a 
     level playing field for plant-based foods and cell-based 
     meat. We write today to express our opposition to the CURD 
     Act (S. 2322).
       A marketplace that serves consumers well is one in which 
     products compete on their merits, not on their political 
     connections. The role of the government in this marketplace 
     is to ensure that products bear clear, accurate, and 
     consistent labels that present essential information without 
     confusing or misleading consumers.
       In our view, the CURD Act has three significant flaws. 
     First, the Act would override FDA's regulatory definition of 
     milk as it pertains to standards of identity for cheeses by 
     explicitly including ``the lacteal secretions from animals 
     other than cows'' but not plant-based milks. The agency's 
     current definition, 21 C.F.R. Sec. 133.3, states that milk 
     used in cheese is obtained by the ``complete milking of one 
     or more healthy cows.'' Of course, there are a wide variety 
     of cheeses in the marketplace that are made from other kinds 
     of milks, including goat's milk, sheep's milk, and cashew 
     milk. The word cheese is allowable so long as these products' 
     labels clearly communicate to consumers the identity of the 
     product (that it is made from goat's milk, sheep's milk, or 
     cashew milk)--just as terms like soy milk, almond milk, and 
     chocolate milk are allowable on milk cartons. The CURD Act's 
     expansion of the definition of milk to include lacteal 
     secretions of other animals, but not plants, suggests that 
     its intent is protectionist: to permit producers to use the 
     label ``natural cheese'' when their products contain 
     ingredients that are not natural (e.g., synthetic dyes) while 
     simultaneously attempting to deny producers of plant-based 
     cheeses access to the same term.
       Second, the CURD Act would establish a product-specific 
     definition of the term ``natural'' instead of a consistent 
     definition set by FDA that would apply to all the food 
     products it regulates. Setting a product-specific definition 
     of ``natural'' would likely conflict with how FDA uses it in 
     other contexts and could result in consumer confusion.
       Third, the Act would create a rift between FDA and USDA 
     regarding the use of ``natural'' on labels. This too could 
     increase consumer confusion. Since the term ``natural'' can 
     mean different things to different consumers, USDA currently 
     requires USDA-approved labels to briefly explain on-label 
     what a ``natural'' claim applies to. The CURD Act does not 
     require any such explanation, giving ``natural cheese'' a 
     free pass to claim it is natural without giving further 
     information to consumers.
       To ensure a fair marketplace that works for consumers, food 
     labels must be clear to consumers and not privilege one set 
     of producers over another. By that measure, the CURD Act 
     fails. We therefore respectfully urge you to oppose the bill 
     at this time.
       Thank you very much for your consideration of this request.
           Sincerely,
     Jessica Almy, Esq.
       Director of Policy, The Good Food Institute.
     Kenneth Forsberg, Ph.D.,
       Senior Policy Specialist, The Good Food Institute.

                              {time}  1315

  Mr. PALLONE. Mr. Speaker, we should not displace the important role 
of the FDA in determining the correct terminology and approach to 
regulating and labeling food products like cheese. Changes to the 
statute should be considered in broad daylight, with robust discussion 
and significant input from consumer, industry, and government 
stakeholders.
  That has not happened in this case, and for these reasons I oppose 
the bill and urge my colleagues to oppose the bill as well.
  Mr. Speaker, I yield back the balance of my time.
  Mr. GUTHRIE. Mr. Speaker, I support S. 2322, the CURD Act, which 
would define the term ``natural cheese'' within the Federal statute 
and, with passage, head to the President's desk.
  Mr. Speaker, I urge all Members to support the bill, and I yield back 
the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Kentucky (Mr. Guthrie) that the House suspend the rules 
and pass the bill, S. 2322.
  The question was taken.
  The SPEAKER pro tempore. In the opinion of the Chair, two-thirds 
being in the affirmative, the ayes have it.
  Mr. AMASH. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further 
proceedings on this motion will be postponed.

                          ____________________