1. How will the COOL enforcement discretion be exercised?
To facilitate the movement of food from food service distributors and restaurants that may not be able to be used, USDA will not take enforcement action for a 60-day period, beginning April 20, 2020, against a retailer who is marketing product that was originally shipped for foodservice and therefore does not have a country of origin or method of production label, provided that the food does not make any country of origin or method of production claims. Once the 60-day period has ended, USDA will continue its regular compliance and enforcement activities and will no longer exercise enforcement discretion for this limited subset of foods. This enforcement discretion does not apply to food products that were originally intended for and shipped into the retail market channel.
2. Why did USDA decide to allow this flexibility?
During this pandemic, it is necessary to maximize the utilization of food and this flexibility will allow food to be diverted from restaurants to retail, ensuring that food is made available to families around the country during the COVID-19 pandemic, when retailers, such as supermarkets, are experiencing greater demand. These flexibilities will also help restaurants and their suppliers access additional markets with food that would otherwise not be used due to restaurant closures. These actions are in line with similar labeling flexibilities allowed by the Food and Drug Administration and USDA Food Safety and Inspection Service.
3. What foods are covered by COOL?
COOL is a labeling law that requires retailers to notify their customers with information regarding where certain foods originated. Covered commodities include muscle cut and ground meats (lamb, goat, and chicken); wild and farm-raised fish and shellfish; fresh and frozen fruits and vegetables; peanuts, pecans and macadamia nuts; and ginseng. Ordinarily, commodities subject to COOL requirements are not required to include a country of origin or method of production label when distributed to foodservice, but the labels are required when these foods are sold at retail establishments.
4. Why did USDA not limit enforcement discretion to items other than fresh fruit and vegetables?
USDA received requests from industry stakeholders to provide flexibilities for all covered commodities to facilitate the efficient distribution and sale of foods that would otherwise not be used due to government-mandated restaurant closures during the COVID-19 pandemic. By allowing foods previously destined for restaurants to be diverted to retail, the flexibilities can reduce food waste and allow retailers to restock shelves in order to meet higher-than-usual consumer demand. The inclusion of fresh fruits and vegetables is consistent with USDA attempts to assist all affected commodity sectors impacted by COVID-19, and allow for the movement of these items to consumers through available retail outlets.
5. How does USDA plan to prevent foreign producers from taking advantage of the COOL enforcement flexibility?
This enforcement discretion only applies to products already in inventory and previously packaged and shipped for foodservice. All products currently being imported must continue to meet all applicable Federal laws, including country of origin laws enforced by U.S. Customs and Border Protection. USDA will continue to enforce compliance with COOL requirements for all covered commodities sold at retail that are not diverted from the foodservice sector, ensuring that they continue to be properly and accurately labeled.
6. Will the enforcement discretion be extended beyond 60 days?
USDA will review feedback, along with any continued requests for flexibility, and assess whether enforcement discretion will be extended.