Comedians, cooking blogs, and most recently a Nebraska man’s City Council rant have gone viral after arguing the use of the term “boneless wings” is not appropriately named – in part because “nothing about boneless chicken wings actually comes from the wing of a chicken.” While we acknowledge the humor and passion behind the Nebraska man’s argument, there is a legal reason why you should care about how food is labeled.
The U.S. Department of Agriculture (USDA), by statute, is responsible for assuring that meat and poultry products in interstate or foreign commerce, or that substantially affect such commerce, are wholesome, not adulterated and properly marked, labeled and packaged. The USDA Food Safety and Inspection Service (FSIS) is charged, in part, with determining if poultry product is misbranded.
The U.S. Food and Drug Administration (FDA), by statute, is responsible for establishing labeling requirements for non-meat and poultry food and food ingredients. Federal law forbids a retailer from selling “misbranded” food items.
In addition to Federal authorities, each individual State has a department of food and agriculture responsible for reviewing food labeling for compliance with Federal law. Of interest, the FDA recently closed the comment period on a 2005 proposed rule to establish a set of general principles for the agency to use when considering whether to establish, revise or eliminate a food standard of identity.
We now apply this lesson to the boneless wing debate – The naming of poultry products is governed by 9 C.F.R. § 381.117 (“…in the case of a poultry product which purports to be or is represented as a product for which a definition and standard of identity or composition … shall be the name of the food specified in the standard, and in the case of any other poultry product shall be the common or usual name of the food, if any there be, and if there is none, a truthful descriptive designation.”). Under the USDA 2018 poultry standard, items labeled “wings” must “include the entire wing (consisting of three segments) with all muscle and skin tissue intact, except that the wing tip (third segment) may be removed.” Furthermore, when a cut of poultry has the bone removed, the product name needs to be labeled to indicate that the bone is not present (e.g. boneless chicken). Under the USDA 2005 policy book, “nuggets are irregularly shaped, usually bite-sized meat and/or poultry products which are usually breaded and deep fried and intended to be used as finger foods.” The policy book does not appear to distinguish between boneless and bone-in wings, but it does find that “[m]eat or poultry products that are cooked and usually coated with a mild or spicy sauce” can be labeled “Buffalo Style” or “made in Buffalo, NY” under the exception of a “fanciful term requiring a descriptive name.”
Though the jury is out on whether the “saucy nugs” term will gain in popularity, one thing is certain – food industry companies must be vigilant in monitoring food labeling regulations to avoid litigation, regulatory scrutiny or simply bad press.
Kimberly Bousquet is a member of the Firm’s business litigation group.