Pet food, like human food, is regulated under the Federal Food, Drug, and Cosmetic Act (hereinafter “FFDCA”). The FFDCA defines food as “articles used for food or drink for man or other animals...” and requires that all foods be free of adulteration and misbranding. Without further analysis, one could conclude from this definition that all pet foods are regulated and approved for human consumption. This could not be further from the truth. In fact, the website of the Center for Veterinary Medicine states that “animal feeds provide a practical outlet for plant and animal byproducts not suitable for human consumption,” a statement seemingly contradictory to the regulations of the FFDCA, which apply equally to human and animal foods.
The FDA’s involvement also extends to the processing and packaging of animal foods. All pet food manufacturing plants are subject to FDA inspection. Canned pet foods face further oversight in the form of the low acid canned food regulations. in addition, the United States Department of Agriculture (hereinafter “USDA”) offers a voluntary inspection of canned foods through its Food Safety and Inspection Service. Manufacturers utilizing the voluntary inspection service may attach a USDA “seal” to their product labels signifying that the product is a USDA Certified Product for Dogs, Cats and Other Carnivora.
Manufacturers violating FDA regulations face penalties ranging from prison and fines to product seizure and warning letters. The FDA often sanctions companies through its informal enforcement powers such as detention authority, recalls and negative publicity. The December 2005 recall by Diamond Pet Foods illustrates the speed with which a manufacturer will recall its own product once harmful effects are discovered. In that case, the manufacturer initiated their recall before the FDA even began an investigation. The Diamond dog food was discovered to contain aflatoxin, a toxin produced by fungus found on corn and other crops that usually develops as a result of hot, arid weather. The risk of bad publicity and losing market share is often enough to force manufacturers to right their own wrongs. Unfortunately, even Diamond’s relatively quick recall came at the expense of the lives of over 76 dogs, plus dozens of others left with permanent liver damage.
Within FDA, the Center for Veterinary Medicine (hereinafter “CVM”) is responsible for the regulation of “animal food (feed) products.” Although this sounds as though the CVM would set standards for pet foods, AAFCO (discussed below), an organization almost entirely independent of any governmental control, bears this responsibility. The CVM, in fact, is only responsible for the regulation of animal drugs, medicated feeds and food additives. In relation to pet foods, this means that unless a food contains drugs, additives, or proffers “health claims” on its label, the CVM, and thereby the FDA, has virtually nothing to do with whether that particular pet food can be sold to the public. There is no requirement of pre-market approval for pet foods.
1. Overview of AAFCO
The FDA chose to fulfill Congress’ mandate of pet food regulation through cooperative agreements and partnerships, rather than forming its own binding regime of rules and regulations. One such agreement exists with the Association of American Feed Control Officials (AAFCO). As the FDA explains “continued partnership with AAFCO is vital to the continued regulation of pet food products because FDA has limited enforcement resources that are focused on human food safety issues.” In other words, because the FDA, like most regulatory agencies, is understaffed and overworked, they are forced to rely on another organization for the majority of pet food regulation. It is important for pet owners to recognize that the FDA has made a choice: to focus its attention on human foods, and leave the pet foods to someone else.
The origin of AAFCO asserting its role in this area remains unclear. Early animal feed regulation consisted of laws governing only the weights and measures of the feeds. These early forms of regulation were not in place to protect the animal, but rather the consumer from a deceptive merchant. Later, when feeds were made with ground grains, fats and protein, rather than the traditional whole grains, consumers needed additional regulation to ensure the new feeds met certain standards.
In relation to its responsibilities regarding pet foods, AAFCO sets model regulations for pet foods including labeling requirements, ingredient definitions and nutritional requirements. But AAFCO does not determine permissible sources of protein or other essential nutrients – AAFCO’s only requirement is that the manufacturer comply with AAFCO’s extensive list of ingredient definitions.http://leda.law.harvard.edu/leda/data/784/Patrick06.html