This is either a very stale story or a fresh look at an old problem.
For the past decade, the American Bakers Association, which represents hundreds of wholesale bakers that make supermarket staples such as Wonder and Roman Meal breads, has been pestering the Center for Food Safety and Applied Nutrition at the Food and Drug Administration for permission to use the word "fresh" on its labels.
The bakers said they were told for years that they could use the term "fresh-baked" bread, but not "fresh" bread, because their product had a preservative in it: calcium propionate, which inhibits the growth of mold after bread is taken out of the bag. This irked the association's members because exemptions to the same rule had been granted allowing "fresh" to be used to describe milk and vegetables. Both of those products, the bakers argued, were preserved with pasteurization or wax.
The bakers were so convinced that this was discriminatory behavior that they refiled their grievance with the FDA in August under a proceeding to address First Amendment issues in food and drug labeling and marketing. The trade group pressed the case it had been making since 1992: It was illogical to restrain an industry that sells fresh products from using the word "fresh."
Apparently the bakers were talking to the "wrong" people at the FDA all those years, because the agency now contends -- after being asked by a reporter -- that it has said since 1993 that "fresh" is fine for bread.
"Maybe I'll stop arguing if they take that position," said Peter Barton Hutt, an attorney for the bakers group and former general counsel with the FDA. "I've never been so happy to be wrong."
Hutt said the bakers have been told a different story for years. Apparently, officials at the Center for Food Safety and Applied Nutrition parsed a provision in the 1993 rule that said "the agency does not agree that the use of the term 'fresh' is appropriate if a food has been subjected to chemical treatments, including but not limited to antioxidants, antimicrobial agents, or preservatives, that introduce chemically active substances that remain in or on the food to preserve or otherwise affect the food." Hence, the addition of calcium propionate, or other preservatives, disqualified bread from being labeled as "fresh."
What didn't get communicated was last week's FDA reading of the rule that says the term "fresh bread" does not mislead consumers, so it is okay to use the term in marketing and labeling.
The FDA admitted in its musings when it issued the final 1993 rule that its proposal about "fresh" might be too restrictive and would not have allowed use of the term "to describe some foods that are accepted by consumers as 'fresh,' such as fresh bread and pasteurized milk."
But the final rule, which was issued in 1993, said that "the term 'fresh' . . . means that the food is in its raw state and has not been frozen or subjected to any form of thermal processing or any other form of preservation." Exemptions were granted for fruit, vegetables and milk.
So the bakers thought their best shot was to get the FDA to exempt baked goods, too. They made every argument in the book -- and dictionary -- to support their point.
In a creative filing on the initial rule, the bakers challenged the FDA's ability to read the definition of "fresh" in Webster's Third New International Dictionary and the New College Edition of the American Heritage Dictionary where bread is used as an exemplar of freshness in one of the definitions: "recently made, produced, or harvested; not stale, spoiled, or withered: fresh bread."
"The ABA believes that the FDA has no authority under the Federal Food, Drug and Cosmetic Act to rewrite dictionaries and repeal common usage of the English language," the group's filing said. "We challenge FDA to find any significant number of people who commonly use the term 'freshly baked bread' in everyday conversation." It's "fresh bread" that people ask for, the bakers wailed.
Though current FDA officials profess little knowledge of the bakers' conundrum, the trade group has a scrapbook of letters recounting meetings with top FDA officials.
There's the May 1997 letter to Fred Shank, then director of the food-safety center, recounting Shank's suggestion that the bakers use "fresh-baked" to comply with the rule.
The group also pushed the issue in a letter to Joseph A. Levitt, the current director of the center, in February 1998 asking for an "expeditious administrative remedy on this issue."
Then there's the May 1998 answer from Elizabeth Campbell, who was acting director of food labeling at the center: "Like milk, the term [fresh] is appropriate on bread that has been heat-processed but not further preserved, and, like produce, it is appropriate on bread that does not contain a chemical preservative." She suggested "freshly baked" or "freshly prepared" as a substitute so as not to mislead consumers.
That was the interpretation that prevailed and kept "fresh" off the bags of millions of loaves of supermarket bread.
Now, the FDA's best legal minds at the agency are astonished at that reading of the rule. Said policy adviser and lawyer Sharon Lindan Mayl: "You can use the word 'fresh' on baked goods and bread. They [the bakers' comments] don't accurately reflect the state of the law."
The bakers could not have been more surprised than if they put white bread in the oven and it came out chocolate cake. "This is bizarre," Hutt said.
But not so fast.
Another senior FDA official said the "fresh" issue will probably be reevaluated in the agency's ongoing First Amendment proceeding after all. "All this stuff is subject to reinterpretation. These definitions were not set in concrete," the official said.
Whatever the final disposition of the fresh issue, the bakers aren't likely to give up because there's only so much real estate on a bread bag for marketing.
As Lee Sanders, the trade group's vice president for regulatory and technical services put it: "We have a fresh product, and we'd like to be able to say that."