603-029-1038 Nutrient Content Claims; General Principles (1) This rule applies to meat or meat products that are intended for human consumption and that are offered for sale. (2) A claim which, expressly or by implication, characterizes the level of a nutrient (nutrient content claim) of the type required in nutrition labeling pursuant to OAR 603-029-1034, may not be made on a label or in labeling of that product unless the claim is made in accordance with the applicable provisions in this OAR 603-029-1038. (a) An expressed nutrient content claim is any direct statement about the level (or range) of a nutrient in the product, e.g., “low sodium” or “contains 100 calories.” (b) An implied nutrient content claim is any claim that: (A) Describes the product or an ingredient therein in a manner that suggests that a nutrient is absent or present in a certain amount (e.g., “high in oat bran”); or (B) Suggests that the product, because of its nutrient content, may be useful in maintaining healthy dietary practices and is made in association with an explicit claim or statement about a nutrient (e.g., “healthy, contains 3 grams (g) of fat”). (c) Except for claims regarding vitamins and minerals described in subsection (16)(c) of this rule, no nutrient content claims may be made on products intended specifically for use by infants and children less than 2 years of age unless the claim is specifically provided for in OAR 603-029-1026 to 603-029-1060. (d) Reasonable variations in the spelling of the terms defined in applicable provisions in this OAR 603-029-1038 and their synonyms are permitted provided these variations are not misleading (e.g., “hi” or “lo”). (3) Information that is required or permitted by OAR 603-029-1034 to be declared in nutrition labeling, and that appears as part of the nutrition label, is not a nutrient content claim and is not subject to the requirements of this rule. If such information is declared elsewhere on the label or in labeling, it is a nutrient content claim and is subject to the requirements for nutrient content claims. (4) A “substitute” product is one that may be used interchangeably with another product that it resembles, i.e., that it is organoleptically, physically, and functionally (including shelf life) similar to, and that it is not nutritionally inferior to unless it is labeled as an “imitation.” (a) If there is a difference in performance characteristics that materially limits the use of the product, the product may still be considered a substitute if the label includes a disclaimer adjacent to the most prominent claim as defined in paragraph (9)(b)(C) of this rule, informing the consumer of such difference (e.g., “not recommended for frying”). (b) This disclaimer shall be in easily legible print or type and in a size no less than that required by OAR 603-029-1004(8) for the net quantity of contents statement, except where the size of the claim is less than two times the required size of the net quantity of contents statement, in which case the disclaimer statement shall be no less than one-half the size of the claim but no smaller than 1⁄16 -inch minimum height, except as permitted by OAR 603-029-1060(4)(b). (5)(a) Because the use of a “free” or “low” claim before the name of a product implies that the product differs from other products of the same type by virtue of its having a lower amount of the nutrient, only products that have been specially processed, altered, formulated, or reformulated so as to lower the amount of the nutrient in the product, remove the nutrient from the product, or not include the nutrient in the product, may bear such a claim (e.g., “low sodium beef noodle soup”). (b) Any claim for the absence of a nutrient in a product, or that a product is low in a nutrient when the product has not been specially processed, altered, formulated, or reformulated to qualify for that claim shall indicate that the product inherently meets the criteria and shall clearly refer to all products of that type and not merely to the particular brand to which the labeling attaches (e.g., “lard, a sodium free food”). (6) A nutrient content claim shall be in type size and style no larger than two times that of the statement of identity and shall not be unduly prominent in type style compared to the statement of identity. (7) Labeling information required in OAR 603-029-1038, 603-029-1044, 603-029-1046, 603-029-1048, 603-029-1050 to 603-029-1052, and 603-029-1058, whose type size is not otherwise specified, is required to be in letters and/or numbers no less than 1⁄16 inch in height, except as permitted by OAR 603-029-1060(4)(b). (8) Except as provided in OAR 603-029-1034 or in subsection (16)(c) of this rule, the label or labeling of a product may contain a statement about the amount or percentage of a nutrient if: (a) The use of the statement on the product implicitly characterizes the level of the nutrient in the product and is consistent with a definition for a claim, as provided in subpart B of this part, for the nutrient that the label addresses. Such a claim might be, “less than 10 g of fat per serving;” (b) The use of the statement on the product implicitly characterizes the level of the nutrient in the product and is not consistent with such a definition, but the label carries a disclaimer adjacent to the statement that the product is not “low” in or a “good source” of the nutrient, such as “only 200 milligrams (mg) sodium per serving, not a low sodium product.” The disclaimer must be in easily legible print or type and in a size no less than required by OAR 603-029-1004(8) for the net quantity of contents, except where the size of the claim is less than two times the required size of the net quantity of contents statement, in which case the disclaimer statement shall be no less than one-half the size of the claim but no smaller than 1⁄16 -inch minimum height, except as permitted by OAR 603-029-1060(4)(b); (c) The statement does not in any way implicitly characterize the level of the nutrient in the product and it is not false or misleading in any respect (e.g., “100 calories” or “5 grams of fat”), in which case no disclaimer is required. (d) “Percent fat free” claims are not authorized by this section. Such claims shall comply with OAR 603-029-1052(2)(f). (9) A product may bear a statement that compares the level of a nutrient in the product with the level of a nutrient in a reference product. These statements shall be known as “relative claims” and include “light,” “reduced,” “less” (or “fewer”), and “more” claims. (a) To bear a relative claim about the level of a nutrient, the amount of that nutrient in the product must be compared to an amount of nutrient in an appropriate reference product as specified in this section (9). (A)(i) For “less” (or “fewer”) and “more” claims, the reference product may be a dissimilar product within a product category that can generally be substituted for one another in the diet or a similar product. (ii) For “light,” “reduced,” and “added” claims, the reference product shall be a similar product, and (B)(i) For “light” claims, the reference product shall be representative of the type of product that includes the product that bears the claim. The nutrient value for the reference product shall be representative of a broad base of products of that type; e.g., a value in a representative, valid data base; an average value determined from the top three national (or regional) brands, a market basket norm; or, where its nutrient value is representative of the product type, a market leader. Firms using such a reference nutrient value as a basis for a claim, are required to provide specific information upon which the nutrient value was derived, on request, to consumers and appropriate regulatory officials. (ii) For relative claims other than “light,” including “less” and “more” claims, the reference product may be the same as that provided for “light” in subparagraph (9)(a)(C)(i) of this rule or it may be the manufacturer's regular product, or that of another manufacturer, that has been offered for sale to the public on a regular basis for a substantial period of time in the same geographic area by the same business entity or by one entitled to use its trade name, provided the name of the competitor is not used on the labeling of the product. The nutrient values used to determine the claim when comparing a single manufacturer's product to the labeled product shall be either the values declared in nutrition labeling or the actual nutrient values, provided that the resulting labeling is internally consistent (i.e., that the values stated in the nutrition information, the nutrient values in the accompanying information, and the declaration of the percentage of nutrient by which the product has been modified are consistent and will not cause consumer confusion when compared), and that the actual modification is at least equal to the percentage specified in the definition of the claim. (b) For products bearing relative claims: (A) The label or labeling must state the identity of the reference product and the percent (or fraction) of the amount of the nutrient in the reference product by which the nutrient has been modified, (e.g., “50 percent less fat than ‘reference product’” or “ 1⁄3 fewer calories than ‘reference product’”); and (B) This information shall be immediately adjacent to the most prominent claim in easily legible boldface print or type, in distinct contrast to other printed or graphic matter, that is no less than that required by OAR 603-029-1004(8) for net quantity of contents, except where the size of the claim is less than two times the required size of the net quantity of contents statement, in which case the referral statement shall be no less than one-half the size of the claim, but no smaller than 1⁄16 -inch minimum height, except as permitted by OAR 603-029-1060(4)(b). (C) The determination of which use of the claim is in the most prominent location on the label or labeling will be made based on the following factors, considered in order: (i) A claim on the principal display panel adjacent to the statement of identity; (ii) A claim elsewhere on the principal display panel; (iii) A claim on the information panel; or (iv) A claim elsewhere on the label or labeling. (D) The label or labeling must also bear: (i) Clear and concise quantitative information comparing the amount of the subject nutrient in the product per labeled serving size with that in the reference product; and (ii) This statement shall appear adjacent to the most prominent claim or to the nutrition information. (c) A relative claim for decreased levels of a nutrient may not be made on the label or in labeling of a product if the nutrient content of the reference product meets the requirement for a “low” claim for that nutrient. (10) The term “modified” may be used in the statement of identity of a product that bears a relative claim that complies with the requirements of this part, followed immediately by the name of the nutrient whose content has been altered (e.g., “modified fat ‘product’”). This statement of identity must be immediately followed by the comparative statement such as “contains 35 percent less fat than ‘reference product’” The label or labeling must also bear the information required by subsection (9)(b) of this rule in the manner prescribed. (11) For purposes of making a claim, a “meal-type” product will be defined as a product that: (a) Makes a major contribution to the diet by: (A) Weighing at least 10 ounces per labeled serving; and (B) Containing not less than three 40 gram portions of food, or combinations of foods, from two or more of the following four food groups, except as noted in subparagraph (11)(a)(B)(v) of this rule: (i) Bread, cereal, rice, and pasta; (ii) Fruits and vegetables; (iii) Milk, yogurt, and cheese; (iv) Meat, poultry, fish, dry beans, eggs, and nuts; except that: (v) These foods will not be sauces (except for foods in the four food groups in subparagraph (11)(a)(C)(i) through (iv) of this rule, that are in the sauces), gravies, condiments, relishes, pickles, olives, jams, jellies, syrups, breadings, or garnishes; and (b) Is represented as, or is in the form commonly understood to be, a breakfast, lunch, dinner, meal, or entre. Such representations may be made by statements, photographs, or vignettes. (12) For purposes of making a claim, a main-dish product will be defined as a food that: (a) Makes a major contribution to the meal by: (A) Weighing at least 6 ounces per labeled serving; and (B) Containing not less than 40 grams of food, or combinations of foods, from two or more of the following four food groups, except as noted in subparagraph (12)(a)(B)(v) of this rule. (i) Bread, cereal, rice, and pasta; (ii) Fruits and vegetables; (iii) Milk, yogurt, and cheese; (iv) Meat, poultry, fish, dry beans, eggs, and nuts; except that: (v) These foods will not be sauces (except for foods in the four food groups in subparagraph (12)(a)(B)(i) through (iv) of this rule, that are in the sauces), gravies, condiments, relishes, pickles, olives, jams, jellies, syrups, breadings, or garnishes; and (b) Is represented as, or is in a form commonly understood to be, a main dish (e.g., not a beverage or dessert). Such representations may be made by statements, photographs, or vignettes. (13) Nutrition labeling in accordance with OAR 603-029-1034, shall be provided for any food for which a nutrient content claim is made. (14) Compliance with requirements for nutrient content claims shall be in accordance with OAR 603-029-1034(8). (15)(a) Unless otherwise specified, the reference amount customarily consumed set forth in OAR 603-029-1036(2) through (5) shall be used in determining whether a product meets the criteria for a nutrient content claim. If the serving size declared on the product label differs from the reference amount customarily consumed, and the amount of the nutrient contained in the labeled serving does not meet the maximum or minimum amount criterion in the definition for the descriptor for that nutrient, the claim shall be followed by the criteria for the claim as required by OAR 603-029-1036(6) (e.g., “very low sodium, 35 mg or less per 55 grams”). (b) The criteria for the claim shall be immediately adjacent to the most prominent claim in easily legible print or type and in a size that is no less than that required by OAR 603-029-1004(8) for net quantity of contents, except where the size of the claim is less than two times the required size of the net quantity of contents statement, in which case the criteria statement shall be no less than one-half the size of the claim but no smaller than 1⁄16 -inch minimum height, except as permitted by OAR 603-029-1060(4)(b). (16) The following exemptions apply: (a) Nutrient content claims that have not been defined by regulation and that appear as part of a brand name that was in use prior to November 27, 1991, may continue to be used as part of that brand name, provided they are not false or misleading under section 1(n) of the Act (21 U.S.C. 601(n)(1)). (b) A statement that describes the percentage of a vitamin or mineral in the food, including foods intended specifically for use by infants and children less than 2 years of age, in relation to a Reference Daily Intake (RDI) as defined in OAR 603-029-1034 may be made on the label or in the labeling of a food without a regulation authorizing such a claim for a specific vitamin or mineral. (c) The requirements of this rule do not apply to infant formulas and medical foods, as described in 21 CFR 101.13(q)(4). (d) Nutrient content claims that were part of the name of a product that was subject to a standard of identity as of November 27, 1991, are not subject to the requirements of section (2) of this rule whether or not they meet the definition of the descriptive term. Statutory/Other Authority: ORS 603.085, ORS 619.042 & ORS 619.046 Statutes/Other Implemented: ORS 603.085, ORS 619.042 & ORS 619.046 History: DOA 19-2022, adopt filed 07/27/2022, effective 07/28/2022