Comment on FDA’s Proposed Rule – French Dressing

On December 21, 2020, the Food and Drug Administration (FDA) proposed a rule to revoke the Standard Of Identity (SOI) for French dressing. FDA found that French dressings’ current standard of identity “no longer promotes honesty and fair dealing in the interest of consumers”.  Effectively the amending of the SOI may allow producers more flexibility, keeping the market competitive with nonstandardized foods.

According to the Federal Register Notice, the proposed rule would not require anything new from salad dressing manufacturers. Rather, by providing the flexibility for innovation, the amendment to French Dressing’s SOI presents an opportunity for social benefits at no cost to the industry or consumer.

The SOI for French dressing was originally established in 1950 (15 FR 5227), re-designated in 1977 (42 FR 14481), and amended in 1993 (58 FR 2886). 21 CFR 169.115  lays out the requirements for specific standardized food dressings and flavorings. The regulation describes the specific ingredients and requirements for labeling to state “French dressing” including being prepared from vegetable oil(s) and one or both of the acidifying ingredients (vinegar or diluted vinegar mixture), or one or more of the alternative ingredients, such as salt, tomato paste, tomato puree, catsup, sherry wine, eggs, and ingredients derived from eggs and containing not less than 35 percent by weight of vegetable oil.

Over two decades later on January 13, 1998, the Association for Dressings and Sauces (ADS) submitted a Citizen Petition to the FDA to propose a rule to revoke the SOI for French dressing. The petition argued that since the latest redesignation for French Dressing’s SOI in 1977, the proliferation of the dressing market, more specifically, the growth and the variation in both the composition and types of dressings, posed significant burdens on manufacturers. The burdens stemmed from the fact that the SOI essentially covered different products; variations of salad dressing. The archaic SOI not only poorly classified certain dressings but was also so narrow as to impose unnecessary restrictions on producers and other industry actors.

After considering the contents of the citizen petition and running a cost-benefit-analysis, FDA found that the proposed rule would aid manufacturers. The proposal detailed in the Federal Register Notice is in direct response to ADS’ 1998 citizen petition. Specifically, FDA states that:

[T]he standard of identity for French dressing no longer promotes honesty and fair dealing in the interest of consumers consistent with section 401 of the FD&C Act… In addition, our proposal to revoke the standard of identity for French dressing is consistent with Executive Order (EO) 13771, ‘‘Reducing Regulation and Controlling Regulatory Costs’’ (January 30, 2017), and Executive Order (EO) 13777, ‘‘Enforcing the Regulatory Reform Agenda’’ (February 24, 2017). [EO]13771 and [EO] 13777, taken together, direct agencies to offset the number and cost of new regulations by identifying prior regulations that can be eliminated because, for example, they are outdated, unnecessary, or ineffective. The proposed revocation also is consistent with section 6 of Executive Order 13563, ‘‘Improving Regulation and Regulatory Review’’ (January 18, 2011), which requires agencies to periodically conduct retrospective analyses of existing regulations to identify those ‘‘that might be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them’’ accordingly.

The proposal has already garnered public support. In fact, the ADS published an official statement of support of the proposed rule to revoke the French dressing SOI, highlighting that:

Since the standard was adopted, there has been a proliferation of a wide variety of nonstandardized pourable salad dressings with different flavors (e.g., Italian, Blue cheese, Vinaigrette, Ranch, Caesar) and composition (including reduced fat, “light” and fat-free dressings).  Further, French is the only pourable salad dressing with a standard of identity. The French dressing standard does not serve as a benchmark for these pourable salad dressings, due to the variation in composition to meet changing consumer needs.  The need for flavor identity standards within a market with a proliferation of flavors is obsolete, and could restrict innovation. There are a wide variety of French-style dressings on the market, and these will continue to be available based on consumer demand.

FDA has requested that actors in the industry, as well as consumers and the public, submit electronic or written comments regarding the proposal. FDA explicitly states that it is “… interested in any information, including data and studies, on consumer expectations regarding French dressing and whether the specifications in § 169.115 are necessary to ensure that French dressing meets these expectations”.

Comments are to be submitted on or before March 22, 2021. If submitted electronically, comments must be submitted to the electronic filing system by 11:59 pm Eastern Time. If submitted by mail, the submission must be postmarked on or before March 21, 2020.

Diaz Trade Law has extensive expertise on FDA food labeling and nutrition guidelines and regulations, as well as in preparing and submitting comments for rulemaking. Please reach out to us if you would like to submit comments to FDA regarding the proposed rule to revoke the Standard of Identity (SOI) for French (salad) dressing. Comments are due March 22, 2021. Diaz Trade Law can be reached at info@diaztradelaw.com and 305-456-3830.

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