"The IDFA and NMPF jointly submitted a citizen petition (Ref. 1) on March 16, 2009, requesting that FDA amend the standard of identity in part 131 (21 CFR part 131) for milk (§ 131.110). Specifically, the petition requests that FDA amend § 131.110(c)(2) to allow the use of “any safe and suitable” sweetener in optional characterizing flavoring ingredients used in milk.  The petition also requests that FDA similarly amend the standards of identity for 17 other milk and cream products. Those standards (hereinafter referred to as the “additional dairy standards”) are as follows: Acidified milk (§ 131.111), cultured milk (§ 131.112), sweetened condensed milk (§ 131.120), nonfat dry milk (§ 131.125), nonfat dry milk fortified with vitamins A and D (§ 131.127), evaporated milk (§ 131.130), dry cream (§ 131.149), heavy cream (§ 131.150), light cream (§ 131.155), light whipping cream (§ 131.157), sour cream (§ 131.160), acidified sour cream (§ 131.162), eggnog (§ 131.170), half-and-half (§ 131.180), yogurt (§ 131.200), lowfat yogurt (§ 131.203), and nonfat yogurt (§ 131.206). The petition asks that the standards of identity for these products be amended to provide for the use of any safe and suitable sweetener in the optional ingredients. 
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IDFA and NMPF request their proposed amendments to the milk standard of identity to allow optional characterizing flavoring ingredients used in milk (e.g., chocolate flavoring added to milk) to be sweetened with any safe and suitable sweetener—including non-nutritive sweeteners such as aspartame. IDFA and NMPF state that the proposed amendments would promote more healthful eating practices and reduce childhood obesity by providing for lower-calorie flavored milk products. They state that lower-calorie flavored milk would particularly benefit school children who, according to IDFA and NMPF, are more inclined to drink flavored milk than unflavored milk at school. As further support for the petition, IDFA and NMPF state that the proposed amendments would assist in meeting several initiatives aimed at improving the nutrition and health profile of food served in the nation's schools. Those initiatives include state-level programs designed to limit the quantity of sugar served to children during the school day. Finally, IDFA and NMPF argue that the proposed amendments to the milk standard of identity would promote honesty and fair dealing in the marketplace and are therefore appropriate under section 401 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 341).
The petition acknowledges that the use of non-nutritive sweeteners in optional characterizing flavoring ingredients in milk is allowed under the existing regulatory scheme, with certain additional requirements. The regulatory framework governing the naming of standardized foods that do not fully comply with the relevant standards of identity changed with the passage of the Nutrition Labeling and Education Act of 1990 and FDA's rulemaking establishing the Agency's requirements for foods named by use of a nutrient content claim and a standardized term (§ 130.10 (21 CFR 130.10)). Section 130.10(d) allows the addition of safe and suitable ingredients to a food named by use of a nutrient content claim and a standardized term when these ingredients are used to, among other things, add sweetness to ensure that the modified food is not inferior in performance characteristic to the standardized food even if such ingredients are not specifically provided for by the relevant food standard. Therefore, while the milk standard of identity in § 131.110 only provides for the use of “nutritive sweetener” in an optional characterizing flavor, milk may contain a characterizing flavor that is sweetened with a non-nutritive sweetener if the food's label bears a nutrient content claim (e.g., “reduced calorie”) and the non-nutritive sweetener is used to add sweetness to the product so that it is not inferior in its sweetness property compared to its standardized counterpart. However, IDFA and NMPF argue that nutrient content claims such as “reduced calorie” are not attractive to children, and maintain that consumers can more easily identify the overall nutritional value of milk products that are flavored with non-nutritive sweeteners if the labels do not include such claims. Further, the petitioners assert that consumers do not recognize milk—including flavored milk—as necessarily containing sugar. Accordingly, the petitioners state that milk flavored with non-nutritive sweeteners should be labeled as milk without further claims so that consumers can “more easily identify its overall nutritional value.”
As to the additional dairy standards, IDFA and NMPF state that administrative efficiency counsels in favor of similar changes. As long as FDA is dedicating resources to amending the standard of identity for milk, they argue, the Agency should also amend the standards for these products at the same time. They state that it is most efficient to consider all of the proposals together. According to the petition, the requested changes to the additional dairy standards present the same issues as the milk standard, and it is therefore appropriate to consider all of the requested changes together."
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