POULTRY LABELING RULE ADDS A FRESH WRINKLE

JOANNA RAMEY

WASHINGTON (FNS) -- Food labeling regulations for California retailers have become even knottier.

That is thanks to a federal appeals court ruling earlier this month that says stores in the state must follow federal definitions when labeling poultry fresh, but can follow state law when advertising it as fresh.

At issue is a year-old California law that never went into effect because of a court challenge by the National Broiler Council, the American Meat Institute and the Arkansas Poultry Federation, which claimed California was overstepping federal guidelines for defining fresh poultry. The federal law gives a broader definition, and the state law gives a much narrower definition, of the temperature range that constitutes freshness in poultry. The California law defines freshness as poultry that has never been stored below 26 degrees. The broader federal standard defines as fresh poultry that is kept at zero degrees to 40 degrees.

The debate over whether the state should allow poultry to be sold bearing a label that says it is fresh even thought it has been stored below 26 degrees, however, may all become moot once the U.S. Department of Agriculture issues its new guidelines for defining fresh poultry. The guidelines are expected to be released next month.

Changes are expected to be made in the narrower direction of the California statute, which national poultry producers cry is protectionist in that it limits the ability to ship poultry, a highly perishable commodity, long distances if it is not frozen.

In ruling on the case Dec. 14, a three-judge panel for the U.S. Court of Appeals' Ninth Circuit, San Francisco, found that the narrower state regulations illegally conflict with the wider federal standard for labeling on poultry items.

But since the federal law doesn't set a temperature standard for language in the advertising of poultry, the state can legally enforce its new law in that arena, the judges ruled.

"California stores can still be required by state law to tell the truth in advertising and to display frozen chickens for what they are -- 'frozen' -- even though the labels on the chickens themselves are required by federal law to say 'fresh,' " the decision noted.

On the other side of the fresh debate are the California Department of Food and Agriculture and the California Poultry Industry Federation, Sacramento, the latter of which represents producers that supply roughly 50% of the state's poultry needs. The association balks at national producers' contentions that the push for a new definition of fresh poultry is protectionist, designed to keep out-of-state suppliers from servicing California.

Bill Mattos, president of the state poultry group, said out-of-state shippers can easily ship nonfrozen poultry to California. He called the fresh debate a truth-in-labeling issue.

"I'm sure it takes a little more effort to keep your product fresh," said Mattos. He said he views the appeals' court ruling as a victory, since consumers buying poultry advertised as "fresh" will get fresh poultry as defined by California lawmakers.

For its part, the California supermarket industry has stayed out of the fray, waiting for the fresh legal challenge to run its course.

"We haven't been instructing our members to do anything until something legally shakes out or until such time the feds come out with new freshness guidelines," said Pamela Williams, vice president of government relations at the California Grocers Association, Sacramento.

Supporters of the California law contend that there is a substantial difference in taste between frozen and nonfrozen poultry. Regardless, they say it's misleading to consumers to buy poultry labeled fresh that has been defrosted after being in the deep freeze.

John McCutcheon, USDA deputy administrator for regulatory programs, said this view was supported during three public hearings on the issue held by the agency earlier this year. He declined, however, to say what changes might be made in the federal guidelines on fresh poultry, which were issued in 1988.

"Most people were saying, when the poultry gets to be hard, they considered it a frozen product and that it isn't anything they want to buy," McCutcheon said. For their part, the National Broiler Council, Washington, and its co-plaintiffs, are weighing whether to challenge the advertising portion of the appeals' court decision.

"This decision is important because it reaffirms long-standing precedent that states may not impose labeling requirements that conflict with federal requirements in order to provide a market advantage to local processors," the council said in a statement.

"We are disappointed that the California law was not pre-empted in its entirety," the council said.