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The Final Rule for Mandatory Country of Original Labeling (MCOOL)
The Final Rule outlines
requirements for retailers to notify their customers of the country of
origin of beef (including veal), lamb, pork, chicken, goat, wild and
farm-raised fish and shellfish, perishable agricultural commodities,
peanuts, pecans, ginseng, and macadamia nuts.
Implementation and Enforcement
of Country of Origin Requirements
The Final Rule for Mandatory
Country of Origin Labeling (MCOOL) came into effect on March 16th, 2009.
The Agricultural Marketing Service (AMS) provided for a six month
education and outreach period following the effective date of its interim
final rule and this period ended in March 2009. Accordingly, more active
enforcement will occur from April 2009 and into the future. AMS will begin
audits of firms that supply retailers with covered commodities in July
2009.
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Types of Operations that must
provide Country of Origin Information.
■ Retail Operations Must Meet COOL Requirements
The Final Rule outlines requirements for retailers where a
retailer is defined as “any person licensed as a retailer under the
Perishable Agricultural Commodities Act (PACA) of 1930 (7 U.S.C. 499a(b)).
Retailers are required to be licensed when the invoice cost of all
purchases of perishable agricultural commodities exceeds $230,000 during a
calendar year. “
■ Food
Service is Exempt
Food
service establishments are exempted (see appendix for definition of
a food service establishment).
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Types of Meat
Products that Require Country of Origin Labeling
■
Covered Commodities Must Have COOL Notification
MCOOL applies to what the Final
Rule defines as "covered commodities". For meat a covered commodity
includes;
Muscle cuts of beef (including veal), lamb, chicken, goat,
and pork; ground beef, ground lamb, ground chicken, ground goat, and
ground pork.
It is important to note that the Final Rule defines
"ground beef" as in 9 CFR §319.15(a);
Chopped fresh and/or frozen beef with or without seasoning
and without the addition of beef fat as such, and containing no more than
30 percent fat, and containing no added water, phosphates, binders, or
extenders. The definition of ground beef also includes products defined by
the term "hamburger" in 9 CFR §319.15(b).
■
Processed Products are Exempted from COOL Requirements
MCOOL exempts processed meat
products. This means that the requirements would not apply to a "covered
commodity" such as beef if the commodity is an ingredient in a processed
food item as defined below;
A retail item derived from a covered commodity that has
undergone specific processing resulting in a change in the character of
the covered commodity, or that has been combined with at least one other
covered commodity or other substantive food component (e.g., chocolate,
breading, tomato sauce), except that the addition of a component (such as
water, salt, or sugar) that enhances or represents a further step in the
preparation of the product for consumption, would not in itself result in
a processed food item. Specific processing that results in a change in the
character of the covered commodity includes cooking (e.g., frying,
broiling, grilling, boiling, steaming, baking, roasting), curing (e.g.,
salt curing, sugar curing, drying), smoking (hot or cold), and
restructuring (e.g., emulsifying and extruding).
Specific processing that results in a change in the
character of the covered commodity includes cooking (e.g., frying,
broiling, grilling, boiling, steaming, baking, roasting), curing (e.g.,
salt curing, sugar curing, drying), smoking (hot or cold), and
restructuring (e.g., emulsifying and extruding).
Examples of excluded items include teriyaki flavored pork
loin, roasted peanuts, breaded chicken tenders, and fruit medley.
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Country of Origin Labeling Categories for Covered
Commodities
The Final Rule places covered meat commodities into three categories.
■
Product
of the United States (all production steps in the US)
Meat
qualifying for labeling as “Product of the United States” would need to
satisfy at least one of the three criteria outlined below for beef, pork,
lamb, chicken, and goat:
(i)
From animals exclusively born, raised, and slaughtered in the United
States;
(ii) From animals born and raised in Alaska or Hawaii and
transported for a period of not more than 60 days through Canada to the
United States and slaughtered in the United States; or
(iii) From animals present in the United States on or before July 15,
2008, and once present in the United States, remained continuously in the
United States.
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■
Multiple
Countries of Origin including US (at least one US production step)
i) Animals NOT
Imported for Immediate Slaughter
The Final Rule states that;
For muscle cut covered commodities derived from animals
that were born in Country X or (as applicable) Country Y, raised and
slaughtered in the United States, and were not derived from animals
imported for immediate slaughter as defined in §65.180, the origin may be
designated as "Product of the U.S., Country X, and (as applicable) Country
Y".
Note: Immediate slaughter is defined as "consignment
directly from the port of entry to a recognized slaughtering establishment
and slaughtered within 2 weeks from the date of entry."
ii) Animal Imported for Immediate Slaughter
For animals imported for
immediate slaughter (as defined above) the Final Rule states that
"the origin of the resulting meat
products derived from that animal shall be designated as Product of
Country X and the United States."
Note: In both i) and ii) above the origin declaration may
include more specific information related to production steps provided
records to substantiate the claims are maintained and the claim is
consistent with other applicable Federal legal requirements.
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■
Imported Beef and Pork Products (no production steps in the US)
Imported covered commodities for which origin has already
been established as defined by this law (e.g., born, raised, slaughtered
or grown) and for which no production steps have occurred in the United
States, shall retain their origin, as declared to U.S. Customs and Border
Protection (CBP) at the time the product entered the United States,
through retail sale.
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Commingled Categories
For muscle cut covered
commodities derived from animals born, raised, and slaughtered in the
U.S. that are commingled during a production day with muscle cut
covered commodities derived from animals that were raised and slaughtered
in the United States, and were not derived from animals imported for
immediate slaughter as defined in §65.180, the origin may be designated,
for example, as "Product of the United States, Country X, and (as
applicable) Country Y".
For muscle cut covered commodities derived from animals
that are born in Country X or Country Y, raised and slaughtered in the
United States, that are commingled during a production day with muscle
cut covered commodities that are derived from animals that are imported
into the United States for immediate slaughter as defined in §65.180, the
origin may be designated as "Product of the United States, Country X, and
(as applicable) Country Y".
In all of the cases above, the countries of origin may
be listed in any order. In addition, if animals are raised in another
country and the United States, provided the animals are not imported for
immediate slaughter as defined in §65.180, the raising that occurs in the
United States takes precedence over the minimal raising that occurred in
the animal’s country of birth.
Retailers are to convey the origin and method of
production information provided to them by their suppliers. Only if the
retailer physically commingles a covered commodity of different
origins and/or methods of production in preparation for retail sale,
whether in a consumer-ready package or in a bulk display (and not
discretely packaged) (i.e., full service fish case), can the retailer
initiate a multiple country of origin and/or method of production
designation.
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Labeling Ground Meats.
The Final Rule states that ground meat covered commodities
must list all countries of origin contained therein or that may be
reasonably contained therein. In determining what is considered
reasonable, when a raw material from a specific origin is not in a
processor’s inventory for more than 60 days, that country shall no longer
be included as a possible country of origin.
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Country of Origin Declarations and Formats
Country of origin declarations can either be in the form of
a placard, sign, label, sticker, band, twist tie, pin tag, or other format
that allows consumers to identify the country of origin. The declaration
of the country of origin of a product may be in the form of a statement
such as “Product of USA,” “Produce of the USA”, or “Grown in Canada,” may
only contain the name of the country such as “USA” or “Canada,” or may be
in the form of a check box provided it is in conformance with other
Federal labeling laws.
Additional requirements for the declaration include;
■
The
declaration must be legible and placed in a conspicuous location, so as to
render it likely to be read and understood by a customer under normal
conditions of purchase.
■
The
declaration of country of origin may be typed, printed, or handwritten
provided it is in conformance with other Federal labeling laws and does
not obscure other labeling information required by other Federal
regulations.
■
A
bulk container (e.g., display case, shipper, bin, carton, and barrel),
used at the retail level to present product to consumers, may contain a
covered commodity from more than one country of origin provided all
possible origins are listed.
■
In
general, abbreviations are not acceptable. Only those abbreviations
approved for use under CBP rules, regulations, and policies, such as
“U.K.” for “The United Kingdom of Great Britain and Northern Ireland”,
“Luxemb” for Luxembourg, and “U.S.” for the “United States” are
acceptable.
■
The adjectival form
of the name of a country (e.g. Canadian) may be used as proper
notification of the country of origin of imported commodities provided the
adjectival form of the name does not appear with other words so as to
refer to a kind or species of product. Symbols or flags alone may not be
used to denote country of origin.
■ With
the exception of perishable agricultural commodities, peanuts, pecans, and
ginseng, State or regional label designations are not acceptable in lieu
of country of origin labeling.
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Record Keeping Requirements for Country of Origin Labeling
■
General Requirements
All records must
be legible and may be maintained in either electronic or hard copy
formats. Various forms of documentation and records will be acceptable.
Upon request by USDA representatives, suppliers and retailers subject to
this subpart shall make available to USDA representatives, records
maintained in the normal course of business that verify an origin claim.
Records shall be provided within 5 business days of the request and may be
maintained in any location.
■
Responsibilities of Suppliers.
Any person engaged
in the business of supplying a covered commodity to a retailer, whether
directly or indirectly, must make available information to the buyer about
the country(ies) of origin of the covered commodity. This information may
be provided either on the product itself, on the master shipping
container, or in a document that accompanies the product through retail
sale. In addition, the supplier of a covered commodity that is responsible
for initiating a country(ies) of origin claim, which in the case of beef,
lamb, chicken, goat, and pork is the slaughter facility, must possess or
have legal access to records that are necessary to substantiate that
claim.
Under the final rule, producer affidavits shall
also be considered acceptable records that suppliers may utilize to
initiate origin claims for all covered commodities, provided it is made by
someone having first hand knowledge of the origin of the covered commodity
and identifies the covered commodity unique to the transaction. In the
case of cattle, producer affidavits may be based on a visual inspection of
the animal to verify its origin. If no markings are found that would
indicate that the animal is of foreign origin (i.e., "CAN" or "M"), the
animal may be considered to be of U.S. origin.
Packers that slaughter animals that are part of a NAIS
compliant system or other recognized official identification system (e.g.,
Canadian official system, Mexico official system) may also rely on the
presence of an official ear tag and/or the presence of any accompanying
animal markings (i.e., "Can", "M"), as applicable, on which to base their
origin claims. This provision also applies to such animals officially
identified as a group lot. The Agency has clarified that packers who
slaughter animals that are tagged with an 840 Animal Identification Number
device without the presence of any additional accompanying marking
indicating the origin as being a country other than the U.S. (i.e., "CAN"
or "M") may use that information as a basis for a U.S. origin claim.
Any person engaged in the business of supplying a covered
commodity to a retailer, whether directly or indirectly (i.e., including
but not limited to growers, distributors, handlers, packers, and
processors), must maintain records to establish and identify the immediate
previous source (if applicable) and immediate subsequent recipient of a
covered commodity for a period of 1 year from the date of the transaction.
For an imported covered commodity, the importer of record
as determined by CBP, must ensure that records: provide clear product
tracking from the port of entry into the United States to the immediate
subsequent recipientand accurately reflect the country of origin of the
item as identified in relevant CBP entry documents and information
systems; and must maintain such records for a period of 1 year from the
date of the transaction.
■
Responsibilities
of Retailers.
For retailers, the
rule requires records and other documentary evidence relied upon at the
point of sale by the retailer to establish a covered commodity’s
country(ies) of origin and method of production (wild and/or farm-raised),
as applicable, to be either maintained at the retail facility or at
another location for as long as the product is on hand and provided to any
duly authorized representative of USDA, upon request, within 5 business
days of the request. The records may be kept in any location.
For pre-labeled products, the label itself is sufficient
information on which the retailer may rely to establish the product’s
origin and method of production, as applicable, and no additional records
documenting origin and method of production information are necessary.
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Limitations on
Liability (Safe Harbor Provisions)
Any intermediary supplier handling a covered commodity
that is found to be designated incorrectly as to the country of origin
shall not be held liable for a violation of the Act by reason of the
conduct of another if the intermediary supplier relied on the designation
provided by the initiating supplier or other intermediary supplier, unless
the intermediary supplier willfully disregarded information establishing
that the country of origin declaration was false.
Any retailer handling a covered commodity that is found to be designated
incorrectly as to the country of origin shall not be held liable for a
violation of the Act by reason of the conduct of another if the retailer
relied on the designation provided by the supplier, unless the retailer
willfully disregarded information establishing that the country of origin
declaration was false.
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Official
Definitions
(as cited in the Final Rule )
Beef (§65.110)
Beef
means meat produced from cattle, including veal.
Commingled covered commodities. (§65.125)
Commingled covered commodities means covered commodities (of the same
type) presented for retail sale in a consumer package that have been
prepared from raw material sources having different origins (e.g., bag of
frozen strawberries).
Covered commodity (§65.135)
(a) Covered commodity
means:
(1) Muscle cuts of beef, lamb, chicken, goat, and pork;
(2) Ground beef, ground lamb, ground chicken, ground goat, and ground
pork;
(3) Perishable agricultural commodities;
(4) Peanuts;
(5) Macadamia nuts;
(6) Pecans; and
(7) Ginseng.
(b) Covered commodities are excluded from this part if the commodity is an
ingredient in a processed food item as defined in §65.220.
Food service
establishment. (§65.140)
Food
service establishment means a restaurant, cafeteria, lunch room, food
stand, saloon, tavern, bar, lounge, or other similar facility operated as
an enterprise engaged in the business of selling food to the public.
Similar food service facilities include salad bars, delicatessens, and
other food enterprises located within retail establishments that provide
ready-to-eat foods that are consumed either on or outside of the
retailer’s premises.
Ground beef (§65.155)
Ground beef has the meaning
given that term in 9 CFR 319.15(a), i.e., chopped fresh and/or frozen beef
with or without seasoning and without the addition of beef fat as such,
and containing no more than 30 percent fat, and containing no added water,
phosphates, binders, or extenders, and also includes products defined by
the terms "hamburger" in 9 CFR 319.15(b).
Ground pork (§65.175)
Ground pork means comminuted pork of skeletal origin that is produced
in conformance with all applicable Food Safety and Inspection Service
labeling guidelines.
Imported for
immediate slaughter (§65.180)
Imported for immediate slaughter means imported into the United States for
“immediate slaughter” as that term is defined in 9 CFR 93.400, i.e.,
consignment directly from the port of entry to a recognized slaughtering
establishment and slaughtered within 2 weeks from the date of entry.
Pork (§ 65.215)
Pork means meat produced from hogs.
Processed food item (§65.220)
Processed food item means a retail item derived from a covered commodity
that has undergone specific processing resulting in a change in the
character of the covered commodity, or that has been combined with at
least one other covered commodity or other substantive food component
(e.g., chocolate, breading, tomato sauce), except that the addition
of a component (such as water, salt, or sugar) that enhances or represents
a further step in the preparation of the product for consumption, would
not in itself result in a processed food item.
Specific processing that results in a change in the character of the
covered commodity includes cooking (e.g., frying, broiling, grilling,
boiling, steaming, baking, roasting), curing (e.g., salt curing, sugar
curing, drying), smoking (hot or cold), and restructuring (e.g.,
emulsifying and extruding). Examples of items excluded include teriyaki
flavored pork loin, roasted peanuts, breaded chicken tenders, and fruit
medley.
Raised (§65.235)
Raised means, in the case of beef, pork, chicken, goat, and lamb, the
period of time from birth until slaughter or in the case of animals
imported for immediate slaughter as defined in §65.180, the period of time
from birth until date of entry into the United States.
Retailer (§65.240)
Retailer means any person licensed as a retailer under the Perishable
Agricultural Commodities Act of 1930 (7 U.S.C. 499a(b)).
Note: Under PACA, a retailer is any person engaged in the business
of selling any perishable agricultural commodity at retail. Retailers are
required to be licensed when the invoice cost of all purchases of
perishable agricultural commodities exceeds $230,000 during a calendar
year. The term perishable agricultural commodity means fresh and frozen
fruits and vegetables.
Slaughter (§65.250)
Slaughter means the point in which a livestock animal (including chicken)
is prepared into meat products (covered commodities) for human
consumption. For purposes of labeling under this part, the word harvested
may be used in lieu of slaughtered.
United States country
of origin. (§65.260)
United States country of
origin means in the case of:
(a) Beef, pork, lamb, chicken, and goat:
(1) From
animals exclusively born, raised, and slaughtered in the United States;
(2) From animals born and raised in Alaska or Hawaii and
transported for a period of not more than 60 days through Canada to the
United States and slaughtered in the United States; or
(3) From animals present in the United States on or before July
15, 2008, and once present in the United States, remained continuously in
the United States.
(b) Perishable agricultural commodities, peanuts, ginseng, pecans,
and macadamia nuts: from products produced in the United States.
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Important
Notice:
The information in this document is intended to provide a
summary of the Final Rule on Country of Origin Labeling produced by the
U.S. Agricultural Marketing Service. Readers should consult with
appropriate regulatory authorities and the information available on the
Internet at www.ams.usda.gov/cool
before taking any action related to Country of Origin Labeling. While this
summary has been produced using whenever possible the official regulatory
text and summaries produced by the AMS it is not guaranteed to be
accurate. Questions on country of origin requirements should be emailed to
COOL@usda.gov .
The Final Rule text in PDF format can be downloaded by clicking
here.
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