January 9, 2008
STANDARD OF IDENTITY FOR OLIVE OIL
By: Daniel Duffy, Principal Analyst
You asked (1) for a summary of a proposed Department of Consumer Protection (DCP) regulation establishing a standard of identity for olive oil; (2) for a summary of the authorizing statute; (3) for a summary of federal law related to food standards of identity; and (4) if a standard of identity for olive oil has been established by the federal government, another state, or in Europe.
Food standards of identity define a product. A standard includes the name of the product and the ingredients that must or may be used in its manufacture. Quality standards set quality minimums that must be met or exceeded. Without standards of identity, different foods could be sold under the same name and different names could describe the same food. The federal government has established standards of identity for many foods, ranging from ketchup (also legally known as catsup or catchup) to milk chocolate. There are requirements that food producers must follow for food if no standard has been established.
The DCP proposed regulation applies to olive oil and olive-pomace oil in intrastate commerce in Connecticut. It creates regulatory definitions of olive oil, refined olive oil, virgin olive oil, extra virgin olive oil, and olive-pomace oil. It sets acidity maximums for the varieties of olive oil. It also, and most significantly, requires olive oil in Connecticut commerce to meet standards adopted by the International Olive Council (IOC). The council is an intergovernmental organization that administers the International Agreement on Olive Oil and Table Oils. The DCP regulation requires it to keep a copy available for public examination during normal business hours. Olive oil that does not meet the standard is deemed misbranded and the commissioner can embargo it.
The Connecticut Food, Drug and Cosmetic Act is a complement to the federal Food, Drug and Cosmetic Act. The state act's statement of legislative intent states that it is intended to protect consumers from harm caused by merchandising deceit and that it is to be uniform with the federal law to the extent that it bans false advertisement. State law deems federal standards of identity to be state standards as well.
The state act bans the sale of food if its label is false or misleading in any way or if it is offered for sale under the name of another food. The DCP commissioner may embargo food if he has probable cause to believe it violates the standards. The commissioner must either begin summary process to confiscate the food or remove the embargo within 21 days.
The law authorizes the DCP commissioner and the director of the Agricultural Experiment Station acting jointly to adopt a regulation creating a state standard of identity if they agree that doing so promotes honesty and fair dealing in the consumer's interest. They may do so only when there is no federal standard. The proposed standard of identity for olive oil would be the first standard established by DCP.
The federal government has not established a standard of identity for olive oil. But it has requirements pertaining to the sale of food for which no standards have been established. These require sellers to use the most common or usual name of the food. If the food is comprised of different ingredients, each ingredient must be listed and include its percentage (usually based on quantity). Although there is no standard of identity for olive oil, federal law requires a label that states the presence of olive oil in a product to also state its percentage of olive oil
We conducted an electronic survey of state administrative regulations and did not find that any other state has established one for olive oil.
We found two European olive oil standards that are apparently intended to work together. The standard is binding on all European Union (EU) countries. Like the proposed regulation, it sets different acidity maximums for the different types of olive oil. The second standard is administered by the IOC and is the one referenced by the proposed regulation. The council's members include the EU. The IOC
standard, in addition to setting the acidity maximums, sets other standards. For example, it limits the amount of 13 different fatty acids that may be in olive oil, as determined by gas chromatography.
PROPOSED DCP REGULATION
The proposed standard applies to all olive oil and olive-pomace oil in intrastate commerce. It defines “olive oil” (1) as the oil obtained solely from the fruit of the olive tree (Olea Europaea L.) to the exclusion of oil obtained using solvents or re-esterification processes and (2) for labeling purposes, as oil consisting of a blend of refined olive oil and virgin olive oils fit for consumption. It has a free acidity of not more than 1 gram per 100. “Refined olive oil” means the oil obtained from virgin olive oils by refining that does not lead to alterations in the initial glyceridic structure. It has a free acidity of not more than 0.3 grams per 100. “Virgin olive oil” means oil obtained from olives by mechanical or other physical means under conditions that do not alter the oil.
Virgin olive oil includes extra virgin oil, virgin oil, and ordinary virgin oil. “Extra virgin oil” means oil that has a free acidity of not more than 0.8 grams per 100. “Virgin olive oil” means oil that has a free acidity of not more than 2 grams per 100. “Ordinary virgin oil” means oil that has a free acidity of not more than 3.3 grams per 100.
The proposed regulation prohibits putting additives in olive oil or olive-pomace oil. “Olive-pomace oil” means oil obtained by treating olive pomace with solvents or other physical treatments, except that alpha-tocopherol up to 200 mg/kg may be added to restore natural tocopherol lost during refining. Olive pomace is the substance remaining after olives have been pressed.
The regulation requires the DCP commissioner to require that olive oil in intrastate commerce in Connecticut meet (1) “the most recent version of the International Olive Oil Council standards, coi/t.15nc no.3/ rev. 1” or (2) a federal standard if one is adopted. The most recent version of the council standard is revision 2 rather than revision 1. Revision 1 was adopted on December 5, 2003. It was replaced by revision 2, adopted on November 24, 2006. The regulation requires DCP to keep a copy of the standard for public examination during normal business hours. Olive oil that does not meet the standard is deemed misbranded and may be embargoed.
There are existing DCP regulations that incorporate by reference other regulations. For example, the regulation for the method of sale of commodities by the National Conference on Weights and Measures and published in the National Institute of Standards and Technology Handbook 130 (Regs. Conn. State Agencies § 43-3a-1). But the proposed regulation incorporates a standard created by an agreement among several nations, including the European Union. We could not find a precedent for this in other DCP regulations.
THE CONNECTICUT FOOD, DRUG, AND COSMETIC ACT
The proposed state regulation establishes a standard of identity for olive oil. It is proposed under the authority of The Connecticut Food, Drug, and Cosmetic Act. The act is intended, in part, to safeguard the public health and promote the public welfare by protecting consumers from harm caused by merchandising deceit. The state law must be uniform with the federal Food, Drug, and Cosmetic Act and with the Federal Trade Commission Act, to the extent to which it bans false advertisement of food and it must promote the uniformity of such legislation and its administration and enforcement in and throughout the United States (CGS § 21a-91).
Ban on Adulterated or Misbranded Food
The Connecticut act bans, among other things, the sale in intrastate commerce of food that is adulterated or misbranded (CGS § 21a-93). Among several grounds, a food is adulterated if any valuable part of it has been substituted wholly or in part (CGS § 21a-101). Among several grounds, a food is misbranded if (1) its labeling is false or misleading in any particular; (2) it is offered for sale under the name of another food; (3) it is a food for which no standard of identity has been established and (a) it falls below the standard of purity, quality, or strength which it purports or is represented to possess or (b) it does not bear its common or usual name of each ingredient, except that spices, flavorings, and colorings may be designated as such without being specifically named (CGS § 21a-102). The law deems federal Food, Drug and Cosmetic Act standards of identity to be state standards for enforcement purposes (CGS 21a-100).
The act authorizes the commissioner and his agents to embargo food that they have probable cause to believe violate the standards of identity requirements. Once the commissioner has embargoed an item, he has 21 days to either begin summary proceedings to confiscate it or to remove the embargo. Proceedings are held in Superior Court by complaint and verified by affidavit. The complaint must include:
1. a description of the product,
2. where the product is located,
3. the name of the person who possesses it, and
4. a statement describing the adulteration or misbranding.
Once a verified complaint has been filed, the law requires the court to issue a warrant to seize the described article and to summon the person named in the complaint. The law requires the court to hold a hearing not less than five days or more than 15 days from the date of the warrant. The court must order the food confiscated if it appears that it was offered for sale in violation of the act. If the food is not injurious to health and could be brought into compliance with the act if it is repackaged or relabeled, the court may order it delivered to its owner upon payment of court costs and provision of a bond to DCP assuring that the product will be brought into compliance (CGS § 21a-96).
Authority to Create Standards of Identity
Unlike most Connecticut statues, the Cosmetic Food, Drug and Cosmetic Act includes a statement of legislative intent. The statement has three parts; two relate to uniformity with federal law, one relating to outlawing the false advertisement of food and other covered items and the other relating to uniformity of administration and enforcement (CGS § 21a-91). Perhaps because of this, the provision authorizing the DCP commissioner to adopt regulations is different than other such authorizations. The law does not allow the commissioner to adopt regulations creating standards of identity on his own. Instead, he must agree with the director of the Agricultural Experiment Station that creating a standard will promote honesty and fair dealing in the interest of consumers. Once agreed, they may jointly adopt regulations establishing standards of identity for commodities with no federal standards of identity. The standards must conform, as far as practicable, with any standards promulgated under the federal Food, Drug and Cosmetic Act, the federal Meat Inspection Act, and the federal Poultry Inspection Act (CGS § 21a-100).
FEDERAL REQUIREMENTS FOR NONSTANDARDIZED FOOD AND OLIVE OIL
The common or usual name of a food must accurately identify or describe the basic nature of the food as simply and directly as possible (21 CFR § 102.5). The name must be uniform among similar products and must not be confusingly similar to the name of another food. The names must include the percentage of any characterizing ingredients if the ingredient has a material bearing on price, consumer acceptance, or to eliminate an erroneous impression. Absent a specific requirement to the contrary, the percentage of characterizing ingredient must be declared on the basis of quantity, using specified phraseology, and meeting type size requirements that depend on the size of the package.
Although there is no standard of identity for olive oil, there are specific federal requirements relating to it. The common or usual name of a mixture of edible fats and oils containing less than 100% and more than 0% of olive oil (1) must be a descriptive name that meets the requirements of 21 CFR § 102.5 and (2) if the label bears any representation, other than in the ingredient listing, of the presence of olive oil, the descriptive name must be followed by a statement of the percentage of olive oil contained in the product (21 CFR § 102.37).
We found two European olive oil standards. The European Union leads the world in olive oil production. The chief clients for its olive oil exports are the United States, Japan, Canada, and Australia. Most of the production is in Italy and Spain. Originally, Italy produced almost all of the olive oil in the EU, but after expansion, it is one of six important producing countries. Expansion has meant that the EU has revised its standards several times, including in 1984, 1998, and 2001. Currently, its standard is intended to improve olive oil quality. Annex I of EU Council Regulation No 865/2004 defines virgin olive oil and classifies it into extra virgin olive oil (with free acidity of 0.8 grams per 100), virgin olive oil (with free acidity of 2 grams per 100), and lampante olive oil (with free acidity of 2 grams per 100). It defines refined olive oil as oil obtained by refining virgin oil with a free acidity of not more than 0.3 grams per 100. It also defines olive oil composed of refined and virgin oils, crude olive-pomace oil, refined olive-pomace oil, and olive-pomace oil. The regulation is binding and is directly applicable in all EU countries.
The second standard is the one developed by the International Olive Council. This is apparently the council referred to in the proposed DCPregulation as the “International Olive Oil Council,” from which it changed its name in 2006. The IOC is the intergovernmental organization responsible for administering the International Agreement on Olive Oil and Table Olives. Its members include the EU and certain European and Mediterranean nations. The United States is not a signatory. It defines virgin olive oil and classifies it into extra virgin, virgin, and ordinary. The classifications are the same as those in the proposed DCP regulation. Like the EU standard, the IOC standard also has standards for lampante virgin olive oil, refined olive oil, blended olive oil, olive-pomace oil, crude olive-pomace oil, and refined olive-pomace oil. It is very specific. For example, its purity criteria include different maximum amounts for 13 different fatty acids as determined by gas chromatography and seven different trans fatty acids. In addition to the purity criteria, its quality criteria measure such matters as organoleptic characteristics, peroxide value, and flash point.