8 replies to this topic

[Lisazitiello]

I work with a unique food handling facility that performs a service of repackaging bulk food items into small sample portions. We are SQF certified and inspected by the USDA and FDA as well as local and state regulatory bodies. The bulk containers are owned and created by a primary manufacturer.  Once the samples are prepared, they are shipped to a recipient for taste testing/sampling to a potential future customer (chef, food safety director or investor of the primary manufacturer).  The sample is free and does not enter any form of retail commerce. Sample sizes range from a few ounces to 1 or 2 pounds.  

 

Using the master case product labeling information from the manufacturer, we procure a new label that contains the manufacturers name and address, ingredient listing, allergens, lot codes, batch codes, expiration date, our USDA legend (if relevant) and our lot code representing the date we portioned and packaged the item.  Is our sample package required to also contain a U.S. weight and metric weight value or is there an exemption to the weight rule?

[Scampi]

Yes, your product is not being sold in this case, thus the weights/measures regulations do not apply thus no weight declaration required

[Lisazitiello]

thank you Scampi.  You are probably one of the most spot on and intelligent persons on this forum and I 100% trust your answer.  Can you please provide a link to the regulation or labeling rule that I could take back to my managers for documentation of this exemption, so they have trust in my decision to not include weight on the label?

Edited by Lisazitiello, 20 January 2023 - 05:18 PM.

[Scampi]

While I cannot locate any regulations regarding samples, since this product is not entering into commerce (not sold) none of the regulation will apply

 

HOWEVER-you must include the weight into your system somehow in the event of a recall for that lot (so you need the weight recorded somewhere)

[SHQuality]

Scampi, wouldn't you also need to record the weight to ensure you do not exceed the maximum amount of sample material to circumvent taxes?

[Lisazitiello]

Scampi, the FDA representative and their supervisor informed us that the term "commerce" does not only mean money paid for the goods but that they see it as entering the public sphere and thus entering commerce.  I argued the same point as you; the goods are given away as free samples and not paid for by the recipient/consumer but they firmly disagreed that it is an exemption.  I was invited by the FDA representative and their supervisor to present exemption documentation from regulations in order to further explore the conversation with them. 

 

BTW, our production records to document weights of the finished product samples.

[Scampi]

That's FDA talk for "we aren't sure"

 

Unless regulatory language specifically calls out goods sent without charge, legally, there's not much your inspectors can say

 

And since I cannot find an FDA definition of commerce, I doubt that would hold water either  

 

We're not talking about exemptions here--------there is zero mention of samples to potential customers within the regulatory boundaries-----it's a loophole in other words-----------that's the same as me demanding to know what the sample weight of a product at Costco on a Saturday is!!!!!!!!!  No, they keep track of how much total product they gave out per day or shift

 

As I said if this were me--label the product with ingredient and allergens

 

keep a record of what you sent to whom and how much--period

[SHQuality]

Why are you trying to not put the weight on the label in the first place?

What would be the benefit for you?

Every production/packing company I ever worked with listed weights on both final products and samples.

 

What would be so bad about just including them?

[G M]

Many categories also do not have a limit on overage -- it's being under the declared amount they care about.  You could just tag it as 1g and be over by several kilograms and it wouldn't matter.  

 

NIST handbook 133 appendix A is probably what you're looking for.  Maximum Allowable Variation is almost exclusively concerned with shorting the buyer for foods.