410 Ind. Admin. Code 7-5-1

Current through May 29, 2024

Section 410 IAC 7-5-1 - Misbranding of food; what constitutes

Authority: IC 16-19-3-4; IC 16-19-3-5

Affected: IC 16-42-1

Sec. 1.

(A) Among representations in the labeling of a food which render such food misbranded is a false or misleading representation with respect to another food or a drug, device, or cosmetic.

Providing however, the labeling of a food which contains two or more ingredients may be misleading by reason (among other reasons) of the designation of such food in such labeling by a name which includes or suggests the name of one or more but not all such ingredients, even though the names of all such ingredients are stated elsewhere in the labeling.

(B) If a food is not manufactured by the person whose name appears on the label, the name shall be qualified by a phrase which reveals the connection such person has with such food, such as "Manufactured for and Packed by _____ ", "Distributed by _____ ", or other similar phrase which expresses the facts.

(C) The statement of the place of business shall include the street address, if any, of such place, unless such street address is shown in a current city directory or telephone directory.

(D) When a person manufactures, packs, or distributes a food at a place other than his principal place of business, the label may state the principal place of business in lieu of the actual place where each package of such food was manufactured or packed or is to be distributed, if such statement is not misleading in any particular.

(E) The requirement that the label shall contain the name and place of business of the manufacturer, packer, or distributor shall not be considered to relieve any food from the requirement that its label shall not be misleading in any particular.

(F)

(1) The statement of the quantity of the contents shall reveal the quantity of food in the package, exclusive of wrappers and other material packed with such food.

(2) The statement shall be expressed in the terms of weight, measure, numerical count, or a combination of numerical count and weight or measure, which are generally used by consumers to express quantity of such food and which give accurate information as to quantity thereof But if no general consumer usage in expressing accurate information as to the quantity of such food exists, the statement shall be in terms of liquid measure if the food is liquid, or in terms of weight if the food is solid, semisolid, viscous, or a mixture of solid and liquid; except that such statement may be in terms of dry measure if the food is a fresh fruit, fresh vegetable, or other dry commodity.

(G)

(1) A statement of weight shall be in terms of the avoirdupois pound and ounce. A statement of liquid measure shall be in terms of the United States gallon if 231 cubic inches and quart, pint, and fluid ounce subdivisions thereof, and, except in case of frozen food which is so consumed, shall express the volume at 68° Fahrenheit (20° Centigrade). A statement of dry measure shall be in terms of the United States bushel of 2150.42 cubic inches and peck, dry quart, and dry pint, subdivision thereof; or in terms of the United States standard barrel and its subdivisions of third, half, and three-quarters barrel. However, in the case of an export shipment, the statement may be in terms of a system of weight or measure in common use in the country to which such shipment is exported.

(2) A statement weight or measure in the terms specified in subdivision (1) of this paragraph may be supplemented by a statement in terms of the metric system of weight or measure.

(3) Unless an unqualified statement of numerical count gives accurate information as to the quantity of food in the package, it shall be supplemented by such statement of weight, measure, or size of the individual units of the food as will give such information.

(H) Statements of quantity shall contain only such fractions as are generally used in expressing the quantity of the food. A common fraction shall be reduced to its lowest terms; a decimal fraction shall not be carried out to more than two places.

(I)

(1) If the quantity of food in the package equals or exceeds the smallest unit of weight or measure which is specified in paragraph (G) of this regulation, and which is applicable to such food under the provisions of paragraph (F) (2) of this regulation, the statement shall express (except as provided in subdivision (2) of this paragraph) the number of the largest of such units contained in the package (for example, the statement on the label of a package which contains one quart of food shall be " 1 quart", and not "2 pints" or "32 fluid ounces"). Where such number is a whole number and a fraction, there may be substituted for the fraction, its equivalent in smaller units, if any smaller is specified in such paragraph (G) (for examples, 1 3/4 quarts may be expressed as " 1 quart 1 1/2 pints" or " 1 quart 1 pint 8 fluid ounces"; 1 1/4 pounds may be expressed as " 1 pound 4 ounces"). The stated number of any unit which is smaller than the largest unit specified in such paragraph (G) contained in the package shall not equal or exceed the number of such smaller units in the next larger unit so specified (for examples, instead of "1 quart 16 fluid ounces" the statement shall be "1 1/2 quarts" or "1 quart 1 pint"; instead of "24 ounces" the statement shall be "1 1/2 pounds" or "1 pound 8 ounces").

(2) In the case of a food with respect to which there exists an established custom of stating the quantity of the contents as a fraction of a unit, which unit is larger than the quantity contained in the package, or as units smaller than the largest unit contained therein, the statement may be made in accordance with such custom if it is informative to consumers.

(J) A food shall be exempt from compliance with the requirements of clause (2) of Section 13 (e) of the Act if-

(1) the quantity of the contents, as expressed in terms applicable to such food under the provisions of paragraph (F) (2) of this regulation, is less than one-half ounce avoirdupois, or less than one-half fluid ounce, or (in case the units of the food can be easily counted without opening the package) less than six units; or

(2) the statement of the quantity of the contents of the package, together with all other words, statements, and information required by or under authority of the Act to appear on the label, cannot, because of insufficient label space, be so placed on the label as to comply with the requirements of Section 13 (f) of the Act and regulations promulgated thereunder.

(K) A word, statement, or other information required by or under authority of the Act to appear on the label may lack that prominence and conspicuousness required by Section 13 (f) of the Act by reason (among other reasons) of-

(1) the failure of such word, statement, or information to appear on the part or panel of the label which is presented or displayed under customary conditions of purchase;

(2) the failure of such word, statement, or information to appear on two or more parts or panels of the label, each of which has sufficient space therefor, and each of which is so designed as to render it likely to be, under customary conditions of purchase, the part or panel displayed;

(3) the failure of the label to extend over the area of the container or package available for such extension, so as to provide sufficient label space for the prominent placing of such word, statement, or information;

(4) insufficiency of label space (for the prominent placing of such word, statement, or information) resulting from the use of label space for any word, statement, design, or device which is not required by or under authority of the Act to appear on the label;

(5) insufficiency of label space (for the prominent placing of such word, statement, or information) resulting from the use of label space to give materially greater conspicuousness to any other word, statement, or information, or to any design or device; or

(6) smallness or style of type in which such word, statement, or information appears, insufficient background contrast, obscuring designs of vignettes, or crowding with other written, printed, or graphic matter.

(L) No exemption depending on insufficiency of label space, as prescribed in regulations promulgated under Section 13 (e) or (i) of the Act shall apply if such insufficiency is caused by-

(1) the use of label space for any word, statement, design, or device which is not required by or under authority of the Act to appear on the label;

(2) the use of label space to give greater conspicuousness to any word, statement, or other information than is required by Section 13 (f) of the Act; or

(3) the use of label space for any representation in a foreign language.

(M)

(1) All words, statements, and other information required by or under authority of the Act to appear on the label or labeling shall appear thereon in the English language.

(2) If the label contains any representation in a foreign language, all words, statements, and other information required by or under authority of the Act to appear on the label shall appear thereon in the foreign language.

(3) If the labeling contains any representation in a foreign language, all words, statements, and other information required by or under authority of the Act to appear on the label or labeling shall appear on the labeling in the foreign language.

(N) If an ingredient (which itself contains two or more ingredients) conforms to a definition and standard of identity prescribed by regulations under Section 11 of the Acts, such ingredient may be designated on the label of such food by the name specified in the definition and standard, supplemented, in case such regulations require the naming of optional ingredients present in such ingredient, by a statement showing the optional ingredients which are present in such ingredient.

(O) No ingredient shall be designated on the label as a spice, flavoring, or coloring unless it is a spice, flavoring, or coloring, as the case may be, within the meaning of such term as commonly understood by consumers. The term "coloring" shall not include any bleaching substance.

(P) An ingredient which is both a spice and a coloring, or both a flavoring and a coloring, shall be designated as spice and coloring, or flavoring and coloring as the case may be, unless such ingredient is designated by its specific name.

(Q) A label may be misleading by reason (among other reasons) of-

(1) the order in which the names of ingredients appear thereon, or the relative prominence otherwise given such names; or

(2) its failure to reveal the proportion of, or other fact with respect to, an ingredient, when such proportion or other fact is material in the light of the representation that such ingredient was used in fabricating the food.

(R)

(1) A food shall be exempt from the requirements of clause 2 of Section 13 (i) of the Act if all words, statements, and other information required by or under authority of the Act to appear on the label of such food, cannot, because of insufficient label space, be so placed on the label as to comply with the requirements of Section 13 (f) of the Act and regulations promulgated thereunder. But such exemption shall be on the condition that, if the omission from the label of the statement of the quantity of the contents affords sufficient space to state legibly thereon all the information required by such clause (2), such statement of the quantity of the contents shall be omitted as authorized by regulation (m) (2) under Section 13 (e) of the Act, and the information required by such clause (2) shall be so stated as prominently as practicable even though the statement is not of such conspicuousness as to render it likely to be read by the ordinary individual under customary conditions of purchase.

(2) In the case of an assortment of different items of food, when variations in the items which make up different packages packed from such assortment normally occur in good packing practice, and when such variations result in variation in the ingredients in different packages, such food shall be exempt from compliance with the requirements of clause (2) of Section 13 (i) of the Act with respect to any ingredient which is not common to all packages. But such exemption shall be on the condition that the label shall bear, in conjunction with the names of such ingredients as are common to all packages, a statement in terms which are as informative as practicable and which are not misleading, indicating that other ingredients may be present.

(S)

(1) The term "artificial flavoring" means a flavoring containing any sapid or aromatic constituent, which constituent was manufactured by a process of synthesis or other similar artifice.

(2) The term "artificial coloring" means a coloring containing any dye or pigment, which dye or pigment was manufactured by a process of synthesis or other similar artifice, or a coloring which was manufactured by extracting a natural dye or natural pigment from a plant or other material in which such dye or pigment was naturally produced.

(3) The term "chemical preservative" means any chemical which, when added to food, tends to prevent or retard deterioration thereof; but does not include common salt, sugars, vinegars, spices or oils extracted from spices, or substances added to food by direct exposure thereof to wood smoke.

(T) A food which is subject to the requirements of Section 13 (k) of the Act shall bear labeling, even though such food is not in package form.

(U) A statement of artificial flavoring, artificial coloring, or chemical preservative shall be placed on the food, or on its container or wrapper, or on any two or all of these, as may be necessary to render such statement likely to be read by the ordinary individual under customary conditions of purchase and use of such food.

(V) A food shall be exempt from compliance with the requirements of Section 13 (k) of the Act if it is not in package form and the units thereof are so small that a statement of artificial flavoring, artificial coloring, or chemical preservative, as the case may be, cannot be placed on such units with such conspicuousness as to render it likely to be read by the ordinary individual under customary conditions of purchase and use.

410 IAC 7-5-1

Indiana State Department of Health; Reg HFD 5; filed Oct 18, 1945, 10:30 am: Rules and Regs. 1947, p. 1313; readopted filed Jul 11, 2001, 2:23 p.m.: 24 IR 4234; readopted filed May 22, 2007, 1:44 p.m.: 20070613-IR-410070141RFA; readopted filed Sep 11, 2013, 3:19 p.m.: 20131009-IR-410130346RFA

Readopted filed 11/13/2019, 3:14 p.m.: 20191211-IR-410190391RFA