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Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Rules and Regulations
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defining the standard of identity for yogurt and revoking the standards for lowfat yogurt and nonfat yogurt.
B. General Comments Comment 1 Several comments requested that we not change the standard of identity for yogurt. The comments asserted that the proposed rule lowers the requirements for yogurt, yields substantially to the NYA petition, and provides yogurt manufacturers too much flexibility in the manufacture of yogurt.
Response 1 We disagree with the comments. The final rule does not lower the requirements for yogurt, but rather modernizes the yogurt standard to allow for technological advances while preserving the basic nature and essential characteristics of yogurt and promotes honesty and fair dealing in the interest of consumers. Technological advances in food science and technology allow for a wider range of milk-derived ingredients developed with advances in membrane processing technology in the dairy industry. The final rule permits the use of emulsifiers and preservatives to prevent separation, improve stability and texture, and extend the shelf-life of yogurt. The final rule also allows for modern methods for measuring acidity pH in addition to titratable acidity and analysis for milkfat, total solids content, milk solids not fat, titratable acidity, and a method to measure the characteristic live and active cultures or microorganisms in yogurt.
As described in our responses to comments 14, 21, 22, and 30, the final rule modifies some requirements to best preserve the integrity and economic value that consumers expect of yogurt.
In addition, the final rule provides regulatory clarity, aligns the standard with products on the market, reflects industry practices, and promotes honesty and fair dealing in the interest of consumers:
Although we considered the NYA
petition mentioned in section III.C., we also considered multiple factors, such as new processing technology and ingredients before proposing to amend the yogurt standards.
We also disagree that the rule provides yogurt manufacturers too much flexibility in the manufacture of yogurt. Providing flexibility in manufacturing may increase efficiency while maintaining the basic nature and essential characteristics of yogurt in terms of the taste, flavor, and texture expected by consumers. For example, the variety of yogurt products increased greatly over the years, with thicker Greek-style yogurt becoming as popular as regular yogurt. Permitting optional
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functional dairy ingredients achieves a desired protein content for Greek-style yogurt prior to culturing/fermentation, and allows for manufacturing without the production of the undesirable acid whey that is potentially a disposal problem. This flexibility also allows the use of technological advances without compromising safety or quality.
Comment 2 Several comments said that the proposed rule would lower the quality and safety standards for yogurt by specifically allowing non-Grade A
dairy ingredients to be used in the manufacture of yogurt.
Response 2 The comments may have misinterpreted the current standards and proposed rule. The current standards for yogurt 131.200, lowfat yogurt 131.203, or nonfat yogurt 131.206 do not specify the use of either Grade A or non-Grade A
dairy ingredients in the manufacture of these products. Nor did we propose or discuss the specific use of non-Grade A dairy ingredients in the manufacture of yogurt in the proposed rule. Thus, there is no change between the current standards and the standard of identity for yogurt in this final rule with respect to the use of non-Grade A ingredients. The use of safe and suitable milk-derived ingredients as described in the final rule does not lower the value, grade, or safety or attribute requirements for yogurt and its ingredients.
C. Section 131.200aDescription The proposed rule, at 131.200a, would require yogurt to contain a minimum of 3.25 percent milkfat, a minimum of 8.25 percent milk solids not fat, and a minimum of 0.7 percent titratable acidity expressed as lactic acid or maximum pH of 4.6, before the addition of bulky flavoring ingredients.
The proposed rule also would require yogurt that is labeled with the optional phrase contains live and active cultures or another appropriate descriptor to contain a minimum of 107
colony forming units per gram CFU/g of live and active cultures at the time of manufacture with a reasonable expectation of 106 CFU/g throughout the manufacturers assigned shelf life of the food.
Comment 3 Some comments supported the proposal requiring yogurt to have a minimum milkfat of 3.25
percent and minimum milk solids not fat of 8.25 percent before the addition of bulky flavoring ingredients. However, one comment would replace the minimum 3.25 percent milkfat requirement with a requirement of 3 g of fat including milkfat and other fat present in the bulky flavoring
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ingredients in the finished product per reference amount customarily consumed RACC. The comment said that requiring 3.25 percent milkfat before the addition of bulky flavoring ingredients can cause inconsistency because the amount of total fat in the finished product can vary depending on the amount and/or type of added flavoring ingredients. The comment suggested that some flavoring ingredients, such as chocolate, nuts, and coconut, can contribute to total fat in the finished product. The comment stated that a fat requirement based on the finished product would also provide manufacturers the flexibility of adding cream after culturing.
Response 3 As discussed in the proposed rule 74 FR 2443 at 2448, we do not believe it is appropriate to change the minimum milkfat content to 3 g fat per 255 g, or 1.3 percent, because the yogurt standard with the minimum 3.25 percent milkfat requirement appears to be used in the manufacture of full-fat yogurts available in the marketplace and is consistent with the basic nature and essential characteristics of yogurt. According to the U.S. Department of Agriculture USDA FoodData Central 2019, the total fat content of yogurt, plain, whole milk is 3.25 g/100 g serving 3.25
percent Ref. 2. This is consistent with the minimum milkfat requirement of the current standard of identity for yogurt.
We emphasize that the minimum fat requirement of 3.25 percent is specifically for milkfat. Allowing fat from nondairy ingredients to count towards the minimum fat level deviates from the basic nature and essential characteristics of yogurt as other types of nondairy fats or oils could contribute to variances in the taste, texture, color, or aroma of yogurt Refs. 3 and 4.
In addition, as discussed in response 15, we are not allowing the addition of optional dairy ingredients, such as pasteurized cream, after culturing.
Therefore, it is appropriate to specify a minimum milkfat level of 3.25 percent before the addition of bulky flavoring ingredients.
Comment 4 Some comments asked us to clarify whether the phrase bulky flavoring ingredients in proposed 131.200a has the same meaning as the phrase bulky flavors used in 131.200a. One comment asked us to use the term bulky flavors in the final rule.
Response 4 We consider the two terms, bulky flavors and bulky flavoring ingredients, to have similar meaning. Examples of bulky flavoring ingredients are fruit and fruit preparations. To be consistent with
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