Commonly Consumed Food Commodities

• What is a “commonly consumed food commodity?”
  • Additional guidance on defining “commonly consumed food commodity"
  • Examples of commonly consumed food commodities
  • Examples of food commodities designated as not commonly consumed
  • Can wheat and other allergenic food commodities be used in minimum risk products?
• What is an “animal feed item?”
• What is an “edible fat and oil?”

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What is a “commonly consumed food commodity?"

Commonly consumed foods are those ingested for their nutrient properties. Food commodities can be either raw agricultural commodities or processed commodities, provided that they are the forms that are sold or distributed for human consumption. The criteria supporting this definition are found in 40 CFR 180.950(a).

If a substance meets the criteria, it can be used in any minimum risk product as an inert ingredient. 

Additional Guidance on Defining “Commonly Consumed Food Commodity”

EPA has received questions that indicate the need for additional guidance related to this topic. There is confusion on the exact meaning of “processed commodity.” That is, when does a substance extracted from a food stop being a food, or is every chemical in the processed commodity considered to be a commonly consumed food?  This distinction is important for a substance to have a tolerance exemption under 40 CFR 180.950(a). 

There is general agreement on what has been considered to be a raw agricultural commodity.  EPA regulations at 40 CFR 180.1(d) defined a raw agricultural commodity (RAC) to include:

• “among other things, fresh fruits, whether or not they have been washed and colored or otherwise treated in their unpeeled natural form;
• vegetables in their raw or natural state, whether or not they have been stripped of their outer leaves, waxed, prepared into fresh green salads, etc;
• grain, nuts, eggs, raw milk, meats, and similar agricultural produce.” 

That same paragraph also excluded from the definition of a RAC any foods that have been processed, fabricated, or manufactured by cooking, freezing, dehydrating, or milling. This can be used as a starting point to understand the processed food commodities that can be used as inert ingredients in minimum risk products.  

In determining if a substance is a processed food commodity for the purposes of 40 CFR 180.950, we have considered: 

• What foods are available in a typical U.S. grocery store.
• What is advertised as a food for human consumption.
• What substances are consumed in significant amounts in the United States.
• The nutrition of the substance. 

To a significant extent, we have relied on various definitions included in Food and Drug Administration (FDA) regulations (see 21 CFR 70.3 and 170.3) as well as in the Federal Food, Drug, and Cosmetic Act (FFDCA). 

• Under 21 CFR 170.3(n), FDA described 43 food categories. Among these are:
  • baked goods and baking mixes (including flours);
  • breakfast cereals;
  • coffee and tea;
  • condiments and relishes;
  • fats and oils;
  • fresh fruits and fruit juices;
  • fresh vegetables;
  • herbs and spices;
  • jams and jellies;
  • meat products;
  • snack foods;
  • soups; and
  • sugars.

These categories are immediately recognizable to most consumers as the foods that they purchase and consume. These categories also provide information to the specification under 40 CFR 180.950(a) that a commonly consumed food is the “form the commodity is sold or distributed to the public for consumption.”

• FFDCA section 201(s) defines a food additive as “any substance the intended use of which results or may reasonably be expected to result, directly or indirectly, in its becoming a component or otherwise affecting the characteristics of any food…”
• On its website, FDA responds to the question of “What is a Food Additive?” with:
  • “In its broadest sense, a food additive is any substance added to food.” 

Thus, a food additive is a substance that is added to a food and thereby becomes a component of the processed form of the food. The food additive is not a food.

• FFDCA section 201(t)(1) describes that a color additive is added or applied to a food.
• On its website, FDA responds to the question of “What is a Color Additive?” using the same phrasing:  “A color additive is any dye, pigment or substance which when added or applied to a food…”
• Thus, a color additive is not a food.

Read more about food ingredients, additives and colors at FDA.

Examples of Commonly Consumed Food Commodities

The following are examples of substances that are a commonly consumed food commodity for the purposes of 40 CFR 180.950(a). 

• Coffee and tea are highly processed commodities that are sold in the grocery store, and the water extract of these processed commodities is quite commonly consumed (by the cupful) even though not supplying significant nutrients or calories. Given the high volume consumption, both the coffee and tea (that we drink) are considered to be a “commonly consumed food commodity” under 40 CFR 180.950(a).


• Water is sold in the grocery store. Water is quite commonly consumed and is needed for continued human existence, even though it does not supply significant nutrients or calories. Water can be used as a cooking method (boiling) and is an ingredient in many recipes. Given the high volume consumption, water is considered to be a “commonly consumed food commodity” under 40 CFR 180.950(a).


• Rice (a food commodity) can be milled into rice flour (only a change to the physical form: a processed commodity), which can then be baked into crackers (processed commodity). The rice, the rice flour, and the rice crackers are considered to be a “commonly consumed food commodity” under 40 CFR 180.950(a).


• Corn (a food commodity) can be milled into cornmeal (only a change to the physical form: a processed commodity), or processed as cornstarch (processed commodity). Corn, cornmeal, and cornstarch are considered to be a “commonly consumed food commodity” under 40 CFR 180.950(a).


• Sugarcane can be consumed, although it would not be considered to be widely consumed in the United States.
  
  
  • Sugarcane is processed into molasses and sugar, both commonly consumed foods.
  • Molasses can be dehydrated or thickened (physical change), but would still be considered to be “chemically” molasses.
  • All of these substances are considered to be a “commonly consumed food commodity” under 40 CFR 180.950(a).
  • However, molasses can also be extracted to obtain betaine, which is not a commonly consumed food, and due to the extraction procedure is considered by EPA to be significantly removed from molasses.
  • In fact, betaine has a separate CAS Reg. No. Therefore, betaine is not considered to be a “commonly consumed food commodity” under 40 CFR 180.950(a).


• Spices and herbs are usually sold in the grocery store in small glass or plastic jars, or cellophane packs.
  
  
  • These are seeds, roots, barks, or leaves of plants used for flavoring and garnish.
  • They can be sold as freshly-picked or dried (whole or ground).
  • Some spices have been used for flavoring foods for hundreds of years, and other herbs and spices have been cited in various mainstream cookbooks for many years.
  • Examples include pepper, cinnamon, oregano, rosemary, bay leaf, basil, and ginger.
  • Such spices and herbs are used in cooking and baking, or can be sprinkled on top of food before serving.
  • They are considered to be a “commonly consumed food commodity” under 40 CFR 180.950(a).

Examples of Food Commodities Designated as Not Commonly Consumed

The following are examples of substances that are not a "commonly consumed food commodity" for the purposes of 40 CFR 180.950(a). 

• Coffee grounds and tea leaves are highly processed commodities that are sold in the grocery store, and the water extract of these processed commodities is quite commonly consumed (by the cupful) even though not supplying significant nutrients or calories. However, the leftover grounds and leaves once the brewing process is complete are not consumed. These are not considered to be a “commonly consumed food commodity” under 40 CFR 180.950(a). Note that there is a tolerance exemption for “coffee grounds (CAS Reg. No. 68916-18-7)” established in 40 CFR 180.950(e), which is an additional indication that these are not commonly consumed foods.
• Wheat, as a food commodity and also as a processed commodity (such as bread or crackers), is excluded because of the number of individuals who are allergic. Wheat is therefore not considered to be a “commonly consumed food commodity” under 40 CFR 180.950(a).
• Food additives are not food commodities. Under section 201(s) and 409 of the Federal Food, Drug, and Cosmetic Act, any substance that is intentionally added to food is a food additive. These are chemicals added to processed foods as anti-caking agents, bulking agents, emulsifiers, preservatives, stabilizers or multiple other uses. While these chemical substances are included as ingredients in many processed commodities, these chemical substances are not advertised as a food for human consumption, are not likely to be consumed in significant amounts, may not supply nutrition, and have a Chemical Abstracts Service Registry Number (CAS Reg. No.). They are not considered to be a “commonly consumed food commodity” under 40 CFR 180.950(a).
  • Note that some chemicals found in processed foods (e.g., glycerin, lecithin, malic acid, maltodextrin, potassium chloride) have been approved by EPA for use in minimum risk pesticide products.
  • Each of these approvals is based on the available information on the safety of the chemical substance.
• Certain chemicals used in food production have been evaluated by the Food and Drug Administration. A chemical substance that has been shown to be safe under the conditions of its intended use, as recognized by qualified experts, is categorized by FDA as “generally recognized as safe” (GRAS). A GRAS determination is made according to the intended use since under FFDCA section 201(s), it is the use of the chemical, not the chemical, itself, that is eligible for the GRAS determination. Thus, the conditions that may be placed on the GRAS chemical can range from:
  • a particular use (e.g., dough strengthener, pH control agent), numerical limitation (with a limit of 0.4 percent for gelatins and puddings),
  • to unlimited (with no limitations other than current good manufacturing practice), that is, for all uses.

GRAS chemical substances are not advertised as a food for human consumption, are not likely to be consumed in significant amounts, may not supply nutrition, and have a CAS Reg. No. They are not considered to be a “commonly consumed food commodity” under 40 CFR 180.950(a).

• Dyes or color additives are used in food production to impart color to a food commodity.
  • FDA has regulatory oversight for color additives used in food, drugs, cosmetics, and medical devices.
  • Color additives are not advertised as a food for human consumption, are not likely to be consumed in significant amounts, may not supply nutrition, and have a CAS Reg. No.
  • They are not considered to be a “commonly consumed food commodity” under 40 CFR 180.950(a).
• Vitamins, dietary supplements, medicines, and cosmetics are not food commodities.
  • These substances may be edible, but are not advertised as a food for human consumption, are not consumed in significant amounts, and may not supply nutrition.
  • Additionally, many of these are sold in child-proof packaging, and/or carry warnings concerning consumption by children.
  • They are not considered to be a “commonly consumed food commodity” under 40 CFR 180.950(a).
  • Note that dietary supplements are specifically excluded under 40 CFR 180.950(a)(2)(iv).

Can wheat and other allergenic food commodities be used in minimum risk products?

The most common allergenic food commodities are: 

• peanuts;
• tree nuts;
• milk;
• soybeans;
• eggs;
• fish;
• crustaceans (many shellfish are crustaceans); and
• wheat.

These food commodities have been deliberately excluded from the description of a “commonly consumed food commodity” per 40 CFR 180.950(a)(2)(ii). This exclusion affects which minimum risk products can include these allergenic food commodities as an inert ingredient.

These eight allergenic food commodities can be used in any minimum risk product with only non-food-use sites (e.g., ornamental plants, highway right-of-ways, rodent control).

Additionally, these eight allergenic food commodities can be used in food-use products applied to certain food-use sites. The tolerance exemption in 40 CFR 180.1071 specifies 14 use patterns appropriate for peanuts, tree nuts, milk, soybeans, eggs, fish, crustaceans (many shellfish are crustaceans), and wheat food commodities as an inert ingredient in a minimum risk product.

What is an “animal feed item?”

EPA’s description of an “animal feed item” is specified in 40 CFR 180.950(b). If a substance meets the criteria specified, then that “animal feed item” can be used in any minimum risk product as an inert ingredient.  

Most agricultural crops and their corresponding raw agricultural and processed commodities can be, and are, fed to livestock. Due to differences in their metabolisms, animals can obtain nutrition from parts of plants that are not digested by humans such as:

• hays;
• forages; 
• seeds;
• leaves;
• hulls and shells; and
• stovers.

Animals also consume plants that are not consumed by humans. 

The significant feed items consumed by animals are listed in Table 1, entitled ‘‘Raw Agricultural and Processed Commodities and Feedstuffs Derived From Crops’’ included in the OPPTS Test Guideline, Residue Chemistry, Guideline 860.1000, Background. There are other feed items not listed in Table 1, such as pineapple forage and fodder, or sugarcane forage and fodder, that are consumed by animals, but not in amounts considered to be significant feed items on a national basis.

Included within the definition of an “animal feed item” are the hulls and shells of the most common allergenic food commodities. This means that, for example, peanut shells, almond hulls, and walnut shells are considered to be “animal feed items” under 40 CFR 180.950 (b).

What is an “edible fat and oil?”

EPA’s description of an “edible fat and oil” is specified in 40 CFR 180.950(c).  

If a substance meets the criteria, then that “edible fat and oil” can be used in any minimum risk product as an inert ingredient.  

According to several on-line dictionaries, a substance that is edible can be described as “fit to be eaten.” Thus, an edible fat or oil is a food commodity. Most fats and oils are composed of fatty acids and glycerol, i.e., triglycerides. Some of the most frequently consumed oils are:

• canola;
• cottonseed;
• olive;
• coconut; and
• corn.

Fats would include:

• lard; and
• beef tallow.

The exemption was phrased as “whether or not commonly consumed” to account for fats and oils that are not widely consumed, such as avocado, pumpkin seed, macadamia, and walnut.

The term edible fat or oil also includes products derived from hydrogenating (food or feed) oils or liquefying (food or feed) fats. This would include, for example, hydrogenated rapeseed oil or hydrogenated soybean oil.

Included within the definition of an “edible fat and oil” are the edible fats and oils of the most common allergenic food commodities.