2024 Regulatory Update Part 1: What We Are Watching in the Pet Food Sector

With regard to the regulation of pet food, we have been monitoring the following:

●   Activities of the American Association of Feed Control Officials (AAFCO), including its collaboration with the Food and Drug Administration (“FDA”); implementation of the revised Model Regulations for Pet Food and Specialty Pet Food ; and other discussions and developments;

●   H.R. 7380 or the Pet Food Uniform Regulatory Reform Act of 2024 (PURR Act): federal legislation introduced in February 2024 that aims to streamline how pet food is regulated by replacing the current state-by-state approach with federal regulatory authority under the FDA; and

●   State laws and proposed legislation 

Model Regulations for Pet Food and Specialty Pet Food

 
The process continues for implementation of the revised Model Regulations for Pet Food and Specialty Pet Food (Model Regulations). which AAFCO approved last July and which entered the implementation phase on January 1, 2024.  

As we have reported in prior updates, the Model Regulations would establish new suggested labeling guidelines regarding nutrition information, ingredient statements, and storage and handling instructions to provide consistency and transparency on pet food labels.  To allow state regulatory programs time to incorporate the guidelines into their legislation as well as enable pet food manufacturers to make the necessary label and packaging updates to their products, AAFCO also recommended a six year enforcement discretion period.  With the aim of achieving a seamless transition, both AAFCO and the National Association of State Departments of Agriculture (NASDA) encourage state regulatory authorities to exercise enforcement discretion in reviewing new pet food labels during this discretion period, and to allow distribution and sale of pet food products that comply with either existing state pet food regulations or the new model regulations.  

AAFCO Receives Support for the Model Regulations From State Heads of Agriculture

On February 7, 2024, at NASDA Winter Policy Conference in Washington, D.C., heads of departments of agriculture voted to support the Model Regulations.  According to a NASDA press release of the same date, “[t]his action item encourages state feed regulatory programs with authority over pet food to adopt the Association of American Feed Control Officials’ Model Regulations for Pet Food and Specialty Pet Food swiftly and uniformly while respecting individual state legal authorities and regulatory processes.

To access AAFCO’s announcement, click here:
https://www.aafco.org/news/nasda-winter-policy-vote/
To view NASDA’s post, click here:
https://www.nasda.org/state-agriculture-officials-support-association-of-american-feed-control-officials-model-regulations-for-pet-food-and-specialty-pet-food/

HR 7380: The Pet Food Uniform Regulatory Reform Act of 2024 (PURR Act)

In our last pet food regulatory update, we detailed the Pet Food Institute (PFI) proposal to create a comprehensive and uniform federal system of pet food regulation.  On February 15 of this year, federal legislation that would further this goal was introduced in the House of Representatives.  H.R. 7380, the Pet Food Uniform Regulatory Reform Act of 2024 or “PURR Act,” seeks to update and streamline how pet food is regulated by giving the U.S. Food and Drug Administration (FDA) regulatory authority over the labeling and ingredient review process for dog and cat food and treats, replacing the less consistent state-by-state approach currently in place.   

Through centralized federal regulatory oversight by the FDA, the proposed legislation would eliminate inconsistent state interpretations and decisions impacting ingredient and pet food label approvals adversely affecting consumer access to safe and nutritious products. The legislation calls for clearly defined performance measures for the FDA, including new ingredient review and approval timelines, overseen by the U.S. Congress.
While under the PURR Act State Departments of Agriculture and other state officials would still engage in quality inspections and product registrations, label and ingredient approvals would be streamlined under the FDA.  According to its proponents, the proposed law would result in a modernized pet food regulatory framework more similar to how human foods are regulated.

According to Dana Brooks, PFI president and CEO (as cited in a May 2, 2024 article in the Pet Food Industry’s Pet Food Forum News), here is what the PURR Act would and would not do:

The proposed PURR Act legislation would:
●  Amend the Federal Food, Drug and Cosmetic Act
●  Pre-empt any state government from requiring label reviews or premarket approval
●  Require FDA’s Center for Veterinary Medicine (CVM) to conduct timely science-based reviews of pet food ingredient submissions and submit a yearly report to Congress on performance metrics
●  Permit ingredients identified as accepted for use in pet food under Chapter 6 of the AAFCO Official Publication to continue to be lawfully used and deemed generally recognized as safe (GRAS)
●  Permit current claims, such as “tartar control,” “human grade,” “natural” and others to continue to be used and regulated by FDA CVM

The proposed PURR Act legislation would not:
●   Change or affect the Food Safety Modernization Act (FSMA), which already gives FDA the authority to regulated pet food safety
●   Affect state safety inspections of facilities under FSMA
●   Affect the ability to use the Food Additive Petition (FAP) process, GRAS determination process or the AAFCO ingredient approval process
●   Affect state regulation and oversight or the ingredient approval process of commercial feed for livestock and specialty pet food under existing federal and state laws
●   Prohibit any cooperative agreements between FDA and states

See: https://www.petfoodindustry.com/news-newsletters/petfood-forum-news/article/15670033/what-the-purr-act-would-and-would-not-do 
To view PFI’s announcement in support of the PURR Act, click here:
https://www.petfoodinstitute.org/newsroom/pet-food-institute-announces-support-for-new-federal-legislation-to-modernize-pet-food-regulation/ 

Since its introduction in February, the PURR Act bill has been referred to the House Committee on Energy and Commerce and the Subcommittee on Health, and remains in committee.

AAFCO Perspective on the PURR Act

 On March 4, 2024 AAFCO shared its concerns that as currently written, the proposed legislation could negatively impact consumer protection, reduce pet food label transparency, and threaten safe advancement of pet food products.

“State feed programs are the first line of defense protecting consumers from misleading or mislabeled pet food products,” shared Austin Therrell, executive director of AAFCO. “Today, many state regulators proactively inspect pet food labeling before products hit the market to ensure that any marketing claims on the label or packaging are accurate and have the necessary scientific data to validate the statements. Under the new PURR Act, this important layer of consumer protection would completely go away.”

According to AAFCO, most state feed programs support the Food and Drug Administration (FDA) by providing premarket reviews of pet food labels to ensure that permissible marketing claims are supported by data and are not false or misleading to the consumer. H.R.7380 would allow pet food manufacturers to “self-proclaim” pet food products as safe and make available to consumers such products without the ingredients or nutritional statements being verified by a government authority.  

Also of concern to AAFCO is the “ingredients sometimes present” language currently included in H.R.7380, which states that manufacturers may use words on packaging such as “and/or,” “contains one or more of the following,” or other words indicating that an ingredient may not be present in the pet food. Manufacturers therefore would be allowed to change or omit ingredients without disclosing this information to consumers.  Such a lack of transparency regarding ingredients might lead to potential health risks for pets with dietary or allergy issues.  

According to AAFCO, the current partnership between the FDA and state governments under a national integrated food safety system allows the FDA to employ “the expertise and resources of state feed programs to strengthen pet food safety inspections and protect consumers against unsafe, fraudulent or misleading advertising and labeling practices.”   While acknowledging the opportunity for improved efficiency and marketplace innovation, Therrell concludes that to do this safely and with transparency, “engaging states and those intimately involved in the day-to-day oversight of pet food products is imperative to truly creating a modernized regulatory system.”

To view AAFCO’s announcement in its entirety, click here:
https://www.aafco.org/news/aafco-shares-concerns-regarding-hr7380-the-pet-food-uniform-regulatory-reform-act-of-2024/ 
To access NASDA’s policy announcement regarding the PURR Act, click here:
https://www.nasda.org/nasda-adopts-policy-in-support-of-federal-pet-food-label-and-opposes-purr-act/ 

Other AAFCO Activities

AAFCO Announces Common Food Index (CFI) Additions

On May 4, 2024, AAFCO announced that it was soliciting public feedback on food items recently submitted for consideration as additions to AAFCO’s Common Food Index (CFI).  The CFI is a repository of common foods that may be appropriate for use in animal food and that serves as a tool for reviewing ingredients on an animal food label, providing harmonization and transparency.  However, as Austin Therrell explains, “[t]o be clear, the CFI is not a substitute for the AAFCO process for new feed ingredient definitions, which remains clearly delineated in the Official Publication.”

As detailed in prior regulatory updates, AAFCO refers to common foods as food items commercially available and suitable for use in animal food but that are not defined by AAFCO, including but not limited to certain whole seeds, vegetables, or fruits. Common food for animals may include common human foods known to be safe for intended use in animal food, and manufacturers are responsible for determining whether a common food is safe and has utility for its intended use prior to commercial distribution as animal food.

There are 10 food items currently being considered for inclusion to the Common Food Index, a list assessed and narrowed to the most common and well-known ingredients by AAFCO’s subcommittee of experienced ingredient definition and label reviewers.  AFFCO encouraged stakeholders such as veterinarians, animal nutritionists, consumer groups and the general public to review the current list of proposed food items and provide feedback by May 31, 2024. 

See: https://www.aafco.org/news/aafco-announces-common-food-index-additions/

Copper Level Guidelines

AAFCO Pet Food Committee (PFC) Votes Not to Establish Voluntary “Controlled Copper” Claim for Dog Food

 On June 3, 2024, AAFCO announced that it had voted not to establish a voluntary “Controlled Copper” claim for dog food.  Research and discussion for a potential claim began in February 2021 after an article was published in the Journal of the American Veterinary Medical Association (JAVMA) concerning the current AAFCO nutritional guidelines for copper (Cu) in dog foods.

An AAFCO expert panel convened to review the relevant veterinary literature and evaluate establishing a safe upper limit, or maximum tolerance, for Cu in dog food  concluded there was insufficient data to establish such a limit at the time, but proposed voluntary language for a “Controlled Copper” claim.  Subsequently, a Copper Claim Workgroup further evaluated the proposed voluntary “Controlled Copper” claim language, along with additional guidelines for Cu in dog food in recognition of concerns from pet owners and veterinarians.

After its May 30, 2024 review of the findings and the proposed voluntary language from the original expert panel, the notes from the copper workgroup, and feedback from veterinarians, animal nutritionists, consumer groups and the general public, the PFC ultimately failed to reach a consensus and voted “no” on the proposed voluntary “Controlled Copper” claim language.  AAFCO maintains that it will continue to monitor new scientific literature as it becomes available and may consider the topic again in the future if warranted by additional data.

See https://www.aafco.org/news/pfc-votes-on-voluntary-controlled-copper-claim-for-dog-food/ 

State Action

As usual, states also have passed or are actively considering legislation affecting pet food producers or retailers.  

Labels

Since our last regulatory update, New York Senate Bill 4314 (would permit commercial feed manufacturers to use the term "human food grade" for certain pet food if it conforms to certain state and federal standards) passed the Senate and was delivered to Governor Hochul, who vetoed the bill on November 17, 2023.  In April of this year, Illinois House Bill 1290 (would provide that pet food and specialty pet food are misbranded if the label fails to disclose whether the pet food contains a major food allergen as defined as milk, eggs, fish, crustaceans, tree nuts, wheat, peanuts, soybeans, and food ingredients that contain protein derived from those foods) missed the crossover deadline and died in committee.

Surcharges/Taxes

A number of bills addressing surcharges or taxes on pet food did not progress during current legislative sessions.  California Assembly Bill 240 (would have imposed a surcharge on retail sellers of dog and cat food upon each dollar of these types of pet food sold in the state and establish a spay-neuter fund) died in committee in January 2024.  Introduced in February 2024, Alabama House Bill 112 (would have, among other things, created a tax on the gross proceeds of the sale of dogs and cats at a rate different than the general state gross sales tax and exempt certain persons in the business of selling dogs and cats from paying general state sales tax on supplies purchased in furtherance of the business) missed the crossover deadline and died in committee in May.  Maryland House Bill 85/Senate Bill 641 (would have adjusted for inflation the current fee on commercial feed) also died in committee this spring.

Some states have considered or have introduced new legislation that would exempt certain producers or retailers from sales tax.  New Jersey Assembly Bill 733, Assembly Bill 2212, Assembly Bill 3234 are similar bills that were introduced in January 2024 and that would provide a sales and use tax exemption for sales of pet food and certain pet medications.  These bills remain in committee.  Introduced in May, New Jersey Assembly Bill 5454 and companion bill Senate Bill 3865 (would have exempted sales of pet food and medication purchased for pets from sales and use tax) both died upon adjournment in January, along with similar bill Assembly Bill 4706.   New York Assembly Bill 4244 and companion Senate Bill 5044 (would have exempted pet food from sales and compensating use taxes) died in committee this past June when the current legislative session adjourned.  

Introduced in January of this year, Virginia Senate Bill 31 would would establish a fund to reimburse participating veterinarians for the surgical sterilizations performed on eligible cats or dogs, and would provide that a surcharge of $50 per ton of pet food distributed in Virginia be deposited in the fund and such pet food be exempted from the existing litter tax.  The bill was continued to the 2025 session in the Finance and Appropriations committee.  

States also passed or considered bills providing for tax exemptions on pet food in the context of disaster preparedness.  In May Florida enacted Florida House Bill 7073, which exempts specified disaster preparedness supplies (to include certain pet supplies) from the state's sales and use tax during specified timeframes.  The new law took effect July 1.  New York Assembly Bill 1201 (would establish the "emergency preparedness month act" and exempt prefabricated go-bags and individual emergency preparedness items (including pet items) from sales tax during specified time periods) remains in committee. New Jersey Assembly Bill 5392/Senate Bill 3852 would have established an annual ten-day sales tax holiday for certain sales of disaster preparedness supplies and equipment, but died on adjournment in January.