The name prescribed consists of the common or usual name of the food plus any additional terms required to be declared. For example, the common or usual name of sweet corn is “corn,” “sweet corn,” or “sugar corn.” The standard also requires that the name declare the style (whole kernel or cream style), the color type (if white), and the words “vacuum pack” or “vacuum packed” (if they meet that criteria). Therefore, “Sweet Corn” is not a complete identification, but rather “Whole Kernel Sweet Corn,” “Whole Kernel Corn,” or other prescribed variations. If not declared, the color must be yellow (declaration as “yellow” or “golden” is optional).19
Undefined Foods—Common or Usual Name
If there is no standard of identity for a food, then the common or usual name of the food must be used. In the absence of a common or usual name, an appropriately descriptive phrase must be used as the statement of identity.20 The descriptive phrase must accurately identify or describe, in as simple and direct terms as possible, the basic nature of the food or its characterizing ingredients or properties (for example, “Chocolate‐Flavored Caramel Corn” but not “Praline Cruncher”).21 See FIGURE 3.1.
FIGURE 3.1 Statement of identity flowchart.
If the name of a food mentions ingredients, generally they must be listed in order of descending predominance in the name of the food. For example, “Apple‐Strawberry Pie” would be correct if apples predominate over strawberries. However, there are a number of exceptions to this rule.
Forms of a Food
When a food is offered in various forms (whole, sliced, diced), the particular form is required as part of the statement of identity unless the form is visible through the container or is depicted by an appropriate vignette.22
Fanciful Names
If the nature of the food is obvious, a fanciful name commonly understood and used by the public for that food may also be used.23 For example, “Submarine Sandwich” may be used (as the identification of a large sandwich made with a small loaf of bread and containing lettuce, condiments, and a variety of meats and cheeses). “B52 Belly Bomber” would be likely considered insufficient because the name is not commonly used or understood by the public. Fanciful names, of course, if they are not misleading, may be used in addition, to the required statement of identity.
Similarly, a brand name may serve as the statement of identity if the name is commonly used and understood by the public to refer to a specific food; for example, Coca Cola and Pepsi Cola.
Misleading Names
In the following case, the appellate court upheld the invalidation of a USDA regulation that permitted “all meat” sausage to contain up to 15 percent water and other ingredients. Although the court stated that a regulation authorizing a false or misleading label would have to be invalidated as not in accordance with the law, note how the court found the regulation invalid also because the USDA had not provided a reasonable basis for calling 85 percent meat sausage “all meat.”
Federation of Homemakers v. Butz
466 F.2d 462 (D.C. Cir. 1972)
Mr. Justice CLARK of the Supreme Court of the United States, and LEVENTHAL and ROBB, Circuit Judges.
Opinion: ROBB, Circuit Judge:
The appellee, Federation of Homemakers, brought this action in the district court to challenge a regulation … prescribing the labeling to be employed on certain sausage products, permits frankfurters to be labeled “All Meat”, “All Beef”, “All Pork”, or “All [species]” as the case may be, although they contain, in addition to meat, 10 percent water and 5 percent other ingredients, including corn syrup, spice flavoring and curing additives. At the same time the regulation prohibits the use of the “All Meat” label on frankfurters containing binders and extenders, such as dried milk, cereal, or meat by‐products aggregating not more than 3 1/2 percent of the ingredients of the frankfurters….
For purposes of this case the relevant parts of the regulation can be summarized as follows: Sausage products labeled “All Meat” may contain, in addition to meat, added water, corn syrup, salt, spices, and curing agents in designated quantities. The non‐meat ingredients in “All Meat” sausages constitute approximately 15 percent of the finished product. Frankfurters which cannot be labeled “All Meat” differ from the “All Meat” variety in that they contain binders and extenders such as dried milk, cereal, or meat by‐products. These added ingredients cannot constitute in the aggregate more than 3 1/2 percent of the total ingredients of the frankfurters. Thus, the only difference between “All Meat” frankfurters and other frankfurters is the existence of up to 3 1/2 percent binders and extenders in the latter; in all other respects the two products are subject to identical standards of composition under the applicable regulations.
The question presented here is whether the label “All Meat”, applied to a product containing 85 percent meat, and employed to distinguish such products from those containing 3 1/2 percent binders and extenders and 81 1/2 percent meat, is false or misleading under 21 U.S.C. § 607(d), which provides that:
No article subject to this subchapter shall be sold or offered for sale by any person, firm, or corporation, in commerce, under any name or other marking or labeling which is false or misleading, or in any container of a misleading form or size, but established trade names and other marking and labeling and containers which are not false or misleading and which are approved by the Secretary are permitted.
If the “All Meat” label is false or misleading, the challenged regulation must be invalidated, for the Secretary’s action in promulgating such a regulation would be in excess of his authority and “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
It is indisputable that the label “All Meat” as employed in this case is inaccurate. The words used are clear and unequivocal, and they import a description which cannot be attached to a product which is “Part Meat” or “All Meat, Water, Condiments, and Curing Agents”. The fact is that frankfurters labeled “All Meat” are simply not all meat.
The Secretary points out, and it is conceded by the Federation, that because of technical limitations no frankfurter can contain more than 85 percent meat. Additional ingredients, such as condiments and water, are essential to supply the properties of taste and texture that are common to frankfurters and without which they would not be recognized as frankfurters. In other words, the Secretary says that by definition a frankfurter is a product containing not more than 85 percent meat. From this premise the Secretary argues that he reasonably determined that the term “all meat frankfurter” is not misleading when applied to a product
