In the midst of the dog days of summer and just before a looming court imposed deadline, the U.S. FDA issued a long-awaited rule finalizing the regulations governing the Agency’s voluntary “generally recognized as safe” (GRAS) Notification program. FDA’s GRAS Notification program has been a successful, albeit somewhat controversial, process by which new food ingredients and new uses of food ingredients can be sanctioned (by FDA) for use in food. Since the program’s inception in 1997, the safety of hundreds of new ingredients have been reviewed by FDA under the proposed program.
The final rule brings to an end a regulatory process that began in 1997, when FDA published its first proposed rule on GRAS substances. By 1998, FDA was accepting GRAS notifications from industry. While the final rule is largely similar to what FDA proposed in 1997, it does include a number of important updates, and also details the new format requirements for GRAS notices submitted to FDA.
The GRAS Notification process has been positively viewed by the food industry as a more efficient means of establishing a suitable regulatory status for substances used in food. One of the main benefits to industry and FDA is that the Notification process avoids the resource intensive food additive petition rulemaking process, under which it often took FDA four years or longer to clear a new food ingredient. In contrast, FDA is usually able to make a conclusion on a GRAS Notification for an ingredient in about six months. The data requirements necessary for the Notification and requisite safety standard, however, are the same for an ingredient reviewed by either procedure.
A GRAS determination is somewhat different from a legal standpoint than the premarket clearance of a food ingredient. In 1958, when Congress passed the Food Additives Amendment Act, it carved out an exemption from the definition of “food additive” for substances that are “generally recognized, among experts qualified by scientific training and experience to evaluate [their] safety, as having been adequately shown through scientific procedures (or, in the case of a substance used in food prior to Jan. 1, 1958, through either scientific procedures or experience based on common use in food) to be safe under the conditions of its intended use.” Substances that are determined to be GRAS are exempt from FDA’s premarket clearance requirements for food additives. Substances that are not GRAS must be the subject of a food additive regulation, which requires a rulemaking process. Manufacturers do not have to obtain FDA’s review of a substance that is properly determined to be GRAS. In some cases, manufacturers may feel comfortable making their own determination, without FDA’s review, that a substance is GRAS under its intended conditions of use. Although manufacturers are legally entitled to make these determinations, market pressures often compel companies to obtain FDA’s concurrence on the GRAS status of a substance.
What’s in Final Rule?
As noted above, the final rule is largely similar to what FDA previously proposed. FDA first published rules governing the voluntary Notification program when the program was proposed in 1997. It subsequently republished the proposal with some changes in 2010 and reopened the comment period. Importantly, the final rule includes a detailed discussion of the use of data to support a “GRAS conclusion.” Specifically, FDA states that a GRAS conclusion must be based on data that are generally available and accepted, and as such, are publicly available. The rule notes that the usual mechanism to establish that scientific information is generally available to the expert scientific community is publication in a peer-reviewed journal. Notably, the final rule provides that unpublished data can corroborate a GRAS conclusion, and should not be ignored, but cannot form the basis of a GRAS conclusion.