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Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Rules and Regulations
most of the dairy standards, we have revised the rule to adopt the term bulky flavoring ingredients.
Comment 5 Currently, the stayed provisions in 131.200a, 131.203a, and 131.206a specify that yogurt have a titratable acidity of not less than 0.9
percent, expressed as lactic acid. We stayed this provision of the standard on September 21, 1982 47 FR 41519 at 41522. Titratable acidity and pH can both be used to measure the acidity of a food product. In the proposed rule 74
FR 2443 at 2449, we proposed that yogurt have either a titratable acidity of not less than 0.7 percent, expressed as lactic acid, or a pH of 4.6 or lower.
Several comments agreed that the stayed requirement of 0.9 percent titratable acidity, expressed as lactic acid, should be changed. One comment supported the minimum titratable acidity of 0.7 percent or maximum pH
of 4.6. Other comments would modify the minimum titratable acidity to 0.6
percent measured in the cultured and fermented yogurt before the addition of bulky flavor ingredients.
One comment said that a minimum titratable acidity of 0.7 percent in the proposed rule is still too high for yogurt products with chocolate or delicate fruit flavors. Another comment claimed that a lower acidity requirement helps industry develop light yogurt products. Other comments pointed out that a minimum 0.6 percent titratable acidity is consistent with the Codex Standard for Fermented Milks CXS
2432003 Ref. 5. Codex Alimentarius Codex is an international body established by the Food and Agriculture Organization of the United Nations and the World Health Organization.
Some comments asked us to revise the rule so that the maximum pH of 4.6
applies to finished product within 24
hours after filling. The comments said that, for yogurt that continues to ferment in the final container, such as cup set and warm fill yogurt, the product pH
continues to drop during the cooling step. The comments also argued that, based on our own safety evaluation, we allow all yogurt products to be filled with an initial pH of 4.80 if the product pH reaches 4.6 or below within 24 hours of filling.
Response 5 We disagree with the comments that would modify the minimum titratable acidity to 0.6
percent or that a minimum titratable acidity of 0.7 percent is still too high for certain yogurt products. Providing for the measurement of acidity in yogurt as a determination of its pH as well as its titratable acidity will introduce flexibility in the yogurt standard and gives manufacturers the flexibility to
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choose a method that best suits their product. As we noted in the proposed rule, the NYA citizen petition recommended a maximum pH of 4.6, and we believe that allowing a minimum titratable acidity of 0.7
percent or an equivalent maximum pH
of 4.6 is appropriate as it reflects current industry practice and better meets some consumers taste preferences 74 FR
2443 at 2448.
The final rules requirement of a minimum titratable acidity of 0.7
percent is similar, but not identical, to requirement or position by Codex. We acknowledge that the Codex Standard established a minimum composition for yogurt of 0.6 percent titratable acidity expressed as percent lactic acid.
However, yogurt products produced in compliance with our requirement of 0.7
percent titratable acidity would comply with the Codex Standard with respect to titratable acidity. Based on our observation of chocolate yogurt products and yogurt flavored with a variety of fruit flavors currently on the market that have a 0.7 percent titratable acidity, we do not believe that the differences between our final rule and the position taken by Codex will adversely affect the ability of manufacturers to produce yogurt with chocolate or delicate fruit flavors or light yogurt products, while maintaining the basic nature and essential characteristics of yogurt.
As for the comments that would revise the rule so that the maximum pH
applies to finished products within 24
hours after filling, we view the fill pH
as an in-process product characteristic for yogurt products. Requiring a maximum pH of 4.6 in the cultured and fermented yogurt before the addition of bulky flavor ingredients ensures the inhibition of growth and toxin formation of Clostridium botulinum the pathogenic organism responsible for foodborne botulism. The manufacturer controls the condition after filling to ensure that the characterizing bacterial culture continues to ferment the product to produce a yogurt product with a maximum pH of 4.6 before the addition of bulky flavoring ingredients.
If the yogurt contains bulky flavoring ingredients, the finished product pH
reflects the equilibrium pH of the cultured and fermented yogurt including the bulky flavoring ingredients. Some bulky flavoring ingredients e.g., fruit preparations can lower the pH of the cultured and fermented yogurt. Applying the pH
requirement to finished product after the addition of these ingredients could indirectly allow the use of acidulants to achieve the desired pH. The yogurt
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standard does not permit the use of food grade acidulants to meet the acidity or pH requirements see response 6. To uphold the basic nature and essential characteristics of yogurt while maintaining product safety and attributes, the yogurt standard must ensure that the cultured and fermented yogurt reaches the desired titratable acidity of 0.7 percent or maximum pH
of 4.6 solely by the fermentation action of bacterial culture and not through the additions of acidulants or bulky flavoring ingredients like fruit preparations. Thus, we do not agree that the maximum pH of 4.6 should apply only to the finished product.
The final rule, therefore, requires, at 131.200a, that yogurt have a titratable acidity of not less than 0.7 percent, expressed as lactic acid, or a pH of 4.6
or lower. We emphasize that both the titratable acidity and the pH
requirements apply to yogurt before the addition of bulky flavoring ingredients.
Comment 6 Several comments stated that the term culturing as used in 131.200a should only refer to milk fermentation by the characterizing cultures Lactobacillus delbrueckii, subspecies bulgaricus, and Streptococcus thermophilus and other additional cultures allowed as optional ingredients. The comments asked us to clarify that culturing does not refer to the addition of lactic acid or other acidulants in modifying the standard to allow the use of a broad category of safe and suitable ingredients that serve a nutritional or functional purpose.
Response 6 We agree that culturing as used in 131.200a refers to milk fermentation by the characterizing cultures L. delbrueckii, subspecies bulgaricus, and S.
thermophilus, and other cultures as described in 131.200d1.
Culturing does not refer to the addition of lactic acid or other acidulants. Lactic acid or other acidulants are not permitted as other optional ingredients under 131.200d.
Comment 7 A few comments said we should not require yogurt to contain a specified amount of live and active cultures and should permit heat treatment of yogurt after culturing to extend shelf life. However, many comments stated that a unique and defining characteristic of yogurt is the presence of live and active cultures and these live and active cultures provide health benefits. These comments indicated that an important health benefit of live and active cultures in yogurt is their ability to break down lactose to allow lactose intolerant individuals to consume yogurt without uncomfortable side effects. One
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