81_FR_62684 81 FR 62509 - Substantiation for Structure/Function Claims Made in Infant Formula Labels and Labeling: Draft Guidance for Industry; Availability

81 FR 62509 - Substantiation for Structure/Function Claims Made in Infant Formula Labels and Labeling: Draft Guidance for Industry; Availability

DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration

Federal Register Volume 81, Issue 175 (September 9, 2016)

Page Range62509-62511
FR Document2016-21725

The Food and Drug Administration (FDA or we) is announcing the availability of a draft guidance for industry entitled ``Substantiation for Structure/Function Claims Made in Infant Formula Labels and Labeling.'' The draft guidance, when finalized, will describe the type and quality of evidence that we recommend that infant formula manufacturers and distributors have to substantiate structure/function claims in infant formula labels and labeling. This draft guidance is intended to help infant formula manufacturers making structure/function claims comply with the statutory requirement that all claims in infant formula labeling must be truthful and not misleading under the Federal Food, Drug, and Cosmetic Act (the FD&C Act).

Federal Register, Volume 81 Issue 175 (Friday, September 9, 2016)
[Federal Register Volume 81, Number 175 (Friday, September 9, 2016)]
[Notices]
[Pages 62509-62511]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-21725]


-----------------------------------------------------------------------

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2016-D-2241]


Substantiation for Structure/Function Claims Made in Infant 
Formula Labels and Labeling: Draft Guidance for Industry; Availability

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice of availability.

-----------------------------------------------------------------------

SUMMARY: The Food and Drug Administration (FDA or we) is announcing the 
availability of a draft guidance for industry entitled ``Substantiation 
for Structure/Function Claims Made in Infant Formula Labels and 
Labeling.'' The draft guidance, when finalized, will describe the type 
and quality of evidence that we recommend that infant formula 
manufacturers and distributors have to substantiate structure/function 
claims in infant formula labels and labeling. This draft guidance is 
intended to help infant formula manufacturers making structure/function 
claims comply with the statutory requirement that all claims in infant 
formula labeling must be truthful and not misleading under the Federal 
Food, Drug, and Cosmetic Act (the FD&C Act).

DATES: Although you can comment on any guidance at any time (see 21 CFR 
10.115(g)(5)), to ensure that we consider your comment on the draft 
guidance before we begin work on the final version of the guidance, 
submit either electronic or written comments on the draft guidance by 
November 8, 2016.

ADDRESSES: You may submit comments as follows:

Electronic Submissions

    Submit electronic comments in the following way:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments. Comments submitted 
electronically, including attachments, to http://www.regulations.gov 
will be posted to the docket unchanged. Because your comment will be 
made public, you are solely responsible for ensuring that your comment 
does not include any confidential information that you or a third party 
may not wish to be posted, such as medical information, your or anyone 
else's Social Security number, or confidential business information, 
such as a manufacturing process. Please note that if you include your 
name, contact information, or other information that identifies you in 
the body of your comments, that information will be posted on http://www.regulations.gov.
     If you want to submit a comment with confidential 
information that you do not wish to be made available to the public, 
submit the comment as a written/paper submission and in the manner 
detailed (see ``Written/Paper Submissions'' and ``Instructions'').

Written/Paper Submissions

    Submit written/paper submissions as follows:
     Mail/Hand delivery/Courier (for written/paper 
submissions): Division of Dockets Management (HFA-305), Food and Drug 
Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
     For written/paper comments submitted to the Division of 
Dockets Management, FDA will post your comment, as well as any 
attachments, except for information submitted, marked and identified, 
as confidential, if submitted as detailed in ``Instructions.''
    Instructions: All submissions received must include the Docket No. 
FDA-2016-D-2241 for ``Substantiation for Structure/Function Claims Made 
in Infant Formula Labels and Labeling.'' Received comments will be 
placed in the docket and, except for those submitted as ``Confidential 
Submissions,'' publicly viewable at http://www.regulations.gov or at 
the Division of Dockets Management between 9 a.m. and 4 p.m., Monday 
through Friday.
     Confidential Submissions--To submit a comment with 
confidential information that you do not wish to be made publicly 
available, submit your comments only as a written/paper submission. You 
should submit two copies total. One copy will include the information 
you claim to be confidential with a heading or cover note that states 
``THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.'' The Agency will 
review this copy, including the claimed confidential information, in 
its consideration of comments. The second copy, which will have the 
claimed confidential information redacted/blacked out, will be 
available for public viewing and posted on http://www.regulations.gov. 
Submit both copies to the Division of Dockets Management. If you do not 
wish your name and contact information to be made publicly available, 
you can provide this information on the cover sheet and not in the body 
of your comments and you must identify this information as 
``confidential.'' Any information marked as ``confidential'' will not 
be disclosed except in accordance with 21 CFR 10.20 and other 
applicable disclosure law. For more information about FDA's posting of 
comments to public dockets, see 80 FR 56469, September 18, 2015, or 
access the information at http://www.fda.gov/regulatoryinformation/dockets/default.htm.
    Docket: For access to the docket to read background documents or 
the electronic and written/paper comments received, go to http://www.regulations.gov and insert the docket number, found in brackets in 
the heading of this document, into the ``Search'' box and follow the 
prompts and/or go to the Division of Dockets Management, 5630 Fishers 
Lane, Rm. 1061, Rockville, MD 20852.
    Submit written requests for single copies of the draft guidance to 
the Office of Nutrition and Food Labeling, Center for Food Safety and 
Applied Nutrition (HFS-800), Food and Drug Administration, 5001 Campus 
Dr., College Park, MD 20740. Send two self-addressed adhesive labels to 
assist that office in processing your request. See the SUPPLEMENTARY 
INFORMATION section for electronic access to the draft guidance.

FOR FURTHER INFORMATION CONTACT: 
    With regard to this draft guidance: Gillian Robert-Baldo, Center 
for Food Safety and Applied Nutrition (HFS-850), Food and Drug 
Administration, 5001 Campus Dr., College Park, MD 20740, 240-402-1451.
    With regard to the information collection issues: Domini Bean, 
Office of Information Management, Food and Drug Administration, 1350 
Piccard Dr., PI50-400T, Rockville, MD 20850, [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    We are announcing the availability of a draft guidance for industry 
entitled ``Substantiation for Structure/Function Claims Made in Infant 
Formula Labels and Labeling.'' We are issuing this draft guidance 
consistent with our good guidance practices regulation (21 CFR 10.115). 
The draft guidance, when finalized, will represent our current

[[Page 62510]]

thinking on substantiation of structure/function claims in infant 
formula labels and labeling. It does not establish any rights for any 
person and is not binding on FDA or the public. You can use an 
alternate approach if it satisfies the requirements of the applicable 
statutes and regulations.
    The draft guidance, when finalized, will describe the type and 
quality of evidence we recommend that infant formula manufacturers and 
distributors have in their records to substantiate their structure/
function claims in the labeling of infant formulas. It will describe 
what we believe to be competent and reliable scientific evidence to 
substantiate structure/function claims in the context of infant 
formulas.

II. Paperwork Reduction Act of 1995

    This draft guidance contains proposed information collection 
provisions that are subject to review by the Office of Management and 
Budget (OMB) under the Paperwork Reduction Act of 1995 (the PRA) (44 
U.S.C. 3501-3520). ``Collection of information'' is defined in 44 
U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or 
requirements that members of the public submit reports, keep records, 
or provide information to a third party. Section 3506(c)(2)(A) of the 
PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 
60-day notice in the Federal Register for each proposed collection of 
information before submitting the collection to OMB for approval. To 
comply with this requirement, we are publishing this notice of the 
proposed collection of information set forth in this document.
    With respect to the collection of information associated with this 
draft guidance, we invite comments on these topics: (1) Whether the 
proposed collection of information is necessary for the proper 
performance of FDA's functions, including whether the information will 
have practical utility; (2) the accuracy of FDA's estimate of the 
burden of the proposed collection of information, including the 
validity of the methodology and assumptions used; (3) ways to enhance 
the quality, utility, and clarity of the information collected; and (4) 
ways to minimize the burden of the information collected on 
respondents, including through the use of automated collection 
techniques, when appropriate, and other forms of information 
technology.
    Title: Recommended Recordkeeping to Substantiate Structure/Function 
Claims Made in Infant Formula Labels and Labeling (OMB Control Number 
0910--NEW).
    Description of respondents: This new collection of information 
would be performed by infant formula manufacturers and distributors. 
The records recommended, to the extent practicable, in this draft 
guidance would include one-time and annual information collection 
burdens pertaining to substantiation of structure/function claims made 
by infant formula manufacturers and distributors. In addition, we have 
estimated the information collection burden for any future structure/
function claims that would involve controlled studies to generate data 
to support those structure/function claims.
    The draft guidance document for industry entitled ``Substantiation 
for Structure/Function Claims Made in Infant Formula Labels and 
Labeling'' addresses only structure/function claims in infant formula 
labeling. It describes the type and quality of evidence we recommend 
infant formula manufacturers and distributors have to substantiate 
their structure/function claims in labeling of both nonexempt and 
exempt infant formulas under section 403(a) of the FD&C Act (21 U.S.C. 
343(a)(1)).
    Analysis of Burden Estimates Resulting From Substantiation for 
Infant Formula Structure/Function Claims: Infant formula manufacturers 
and distributors would only collect information to substantiate their 
product's structure/function claim if they choose to place a structure/
function claim on their product's label or labeling. Gathering evidence 
on a currently existing claim is estimated to be a one-time burden; the 
respondents would collect the substantiating information for their 
product pursuant to section 403(a) of the FD&C Act. We recommend that 
infant formula manufacturers and distributors accurately maintain the 
substantiating materials for these claims in their files. We estimate 
that infant formula manufacturers and distributors would seek 
substantiation for their claims in intervention studies and the 
scientific literature and that this burden will likely be comparable to 
the time needed to assemble information for a new infant formula 
submission (16 hours). In addition, we estimate, based on information 
available to FDA, that there are currently 10 existing structure/
function claims for which infant formula manufacturers would gather 
substantiation data. Therefore, the total one-time estimated burden 
imposed by this collection of information would be 160 hours (16 
estimated information collection hours x 10 estimated existing 
structure/function claims), as shown in table 1.
    We have estimated the annual information collection burdens for 
maintenance of records related to substantiation of existing structure/
function claims. We estimate that respondents would spend 1 hour 
annually maintaining records for each of the 10 estimated currently 
existing structure/function claims. Therefore, 1 hour x 10 claims = 10 
annual hours, as presented in table 1.
    It is possible that an infant formula manufacturer or distributor 
would want to make a structure/function claim for which there is 
equivocal or insufficient evidence or no substantiating evidence. In 
this case, we estimate that an infant formula manufacturer or 
distributor would conduct a controlled study in order to gather data to 
substantiate the structure/function claim. It is not possible to know 
the frequency with which this may occur; however, we assume that an 
infant formula manufacturer or distributor would engage in a controlled 
study only if the benefits to the infant formula manufacturer or 
distributor were larger than the costs of performing the study. To 
account for the possibility that infant formula manufacturers or 
distributors would choose to conduct a controlled study for the purpose 
of generating data to substantiate a new structure/function claim, in 
table 2 we estimate an information collection burden based on one 
hypothetical annual controlled study. The burdens of this hypothetical 
controlled study are based on averages taken from three sample 
controlled studies (Refs. 1, 2, and 3) and estimates an average test 
subject size of 153 infants.
    We estimate that a hypothetical controlled study would involve, on 
average, four recordkeepers: A principal investigator (e.g., a 
physician), a sample collector, one nurse or other health care 
professional with similar experience, and a microbiological laboratory 
technologist. We estimate that the principal investigator would work, 
on average, 3 hours annually to assemble and interpret the data 
collected per study period. We estimate that one sample collector would 
work an average of 38.25 hours annually (153 infants x 0.25 hours per 
infant = 38.25 hours) to collect and record stool samples from infants. 
We estimate that one nurse or other health care professional with 
similar experience would work an average of 38.25 hours annually (153 
infants x 0.25 hours per infant = 38.25 hours) to complete 
questionnaires on the samples collected from the infants in the study. 
We estimate that a

[[Page 62511]]

microbiological laboratory technologist would work an average of 76.5 
hours annually (153 infants x 0.5 hours per infant = 76.5 hours) to 
prepare and analyze fecal samples taken from infants in the controlled 
study. All estimates are shown in table 2. Therefore, a total of 156 
additional annual burden hours (3 + 38.25 + 38.25 + 76.5 = 156) are 
estimated to account for the information collection burden resulting 
from the need to conduct a controlled study in order to gather data to 
substantiate a new structure/function claim, or a structure/function 
claim that lacks sufficient prior evidence, for a total of 166 total 
annual hours (156 + 10 = 166) for the upkeep and generation of 
information used to substantiate structure/function claims. Including 
the one-time burden of 160 hours annualized over 3 years (160/3 = 
53.3), the total annual record keeping burden is 219.3 hours (166 + 
53.3 = 219.3). There are no estimated capital costs or operating and 
maintenance costs associated with this information collection.

                             Table 1--Estimated One-Time Hourly Recordkeeping Burden
----------------------------------------------------------------------------------------------------------------
                                                    First year
     Recordkeeping activity          Number of     frequency of    Total records     Hours per      Total hours
                                    respondents    recordkeeping                      record
----------------------------------------------------------------------------------------------------------------
                                            First Year Hourly Burden
----------------------------------------------------------------------------------------------------------------
Assembling Records Related to                 10               1              10              16             160
 Substantiation of Existing
 Structure/Function Claims......
                                 -------------------------------------------------------------------------------
    Total First Year Only         ..............  ..............  ..............  ..............            *160
     Recordkeeping Burden.......
----------------------------------------------------------------------------------------------------------------


                                          Table 2--Recordkeeping Burden
----------------------------------------------------------------------------------------------------------------
                                                    Annual
    Recordkeeping activity         Number of     frequency of    Total records  Hours per record    Total hours
                                  respondents    recordkeeping
----------------------------------------------------------------------------------------------------------------
                                             Recurring Hourly Burden
----------------------------------------------------------------------------------------------------------------
*Annualized Recordkeeping                   10               1             5.3  1...............            53.3
 Burden from Table 1.
Maintaining Records Related to              10               1              10  1...............              10
 Substantiation of Structure/
 Function Claims.
Controlled Study--Principal                  1               1               1  3...............               3
 Investigator.
Controlled Study--Sample                     1             153             153  0.25 (15                   38.25
 Collector.                                                                      minutes).
Controlled Study--Nurse/Heath                1             153             153  0.25 (15                   38.25
 Care Professional.                                                              minutes).
Controlled Study--Lab Tech....               1             153             153  0.5 (30 minutes)            76.5
                               ---------------------------------------------------------------------------------
    Total Recordkeeping Burden  ..............  ..............  ..............  ................           219.3
----------------------------------------------------------------------------------------------------------------

    Before the proposed information collection provisions contained in 
this draft guidance become effective, we will publish a notice in the 
Federal Register announcing OMB's decision to approve, modify, or 
disapprove the proposed information collection provisions. An Agency 
may not conduct or sponsor, and a person is not required to respond to, 
a collection of information unless it displays a currently valid OMB 
control number.

III. Electronic Access

    Persons with access to the Internet may obtain the draft guidance 
at either http://www.fda.gov/FoodGuidances or http://www.regulations.gov. Use the FDA Web site listed in the previous 
sentence to find the most current version of the guidance.

IV. References

    The following references are on display in the Division of Dockets 
Management (see ADDRESSES) and are available for viewing by interested 
persons between 9 a.m. and 4 p.m., Monday through Friday; they are also 
available electronically at http://www.regulations.gov.

1. Moro, G., F. Mosca, V. Miniello, et al., ``Effects of a New 
Mixture of Prebiotics on Faecal Flora and Stools in Term Infants.'' 
Acta Paediatrica, 2003. Supplement September 1991(441): pp. 77-79.
2. Boehm, G., M. Lidestri, P. Casetta,, et al., ``Supplementation of 
a Bovine Milk Formula with an Oligosaccharide Mixture Increases 
Counts of Faecal Bifidobacteria in Preterm Infants.'' Archives of 
Disease in Childhood Fetal and Neonatal Edition, 2002. 86(3): pp. 
F178-181.
3. Pickering, L.K., D.M. Granoff, J.R. Erickson, et al., 
``Modulation of the Immune System by Human Milk and Infant Formula 
Containing Nucleotides.'' Pediatrics, 1998. 101(2): pp. 242-249.

    Dated: August 29, 2016.
Leslie Kux,
Associate Commissioner for Policy.
[FR Doc. 2016-21725 Filed 9-8-16; 8:45 am]
 BILLING CODE 4164-01-P



                                                                                Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Notices                                           62509

                                                    public conduct during advisory                          the docket unchanged. Because your                    for public viewing and posted on http://
                                                    committee meetings.                                     comment will be made public, you are                  www.regulations.gov. Submit both
                                                      Notice of this meeting is given under                 solely responsible for ensuring that your             copies to the Division of Dockets
                                                    the Federal Advisory Committee Act (5                   comment does not include any                          Management. If you do not wish your
                                                    U.S.C. app. 2).                                         confidential information that you or a                name and contact information to be
                                                      Dated: September 2, 2016.                             third party may not wish to be posted,                made publicly available, you can
                                                    Leslie Kux,
                                                                                                            such as medical information, your or                  provide this information on the cover
                                                                                                            anyone else’s Social Security number, or              sheet and not in the body of your
                                                    Associate Commissioner for Policy.
                                                                                                            confidential business information, such               comments and you must identify this
                                                    [FR Doc. 2016–21688 Filed 9–8–16; 8:45 am]              as a manufacturing process. Please note               information as ‘‘confidential.’’ Any
                                                    BILLING CODE 4164–01–P                                  that if you include your name, contact                information marked as ‘‘confidential’’
                                                                                                            information, or other information that                will not be disclosed except in
                                                                                                            identifies you in the body of your                    accordance with 21 CFR 10.20 and other
                                                    DEPARTMENT OF HEALTH AND                                comments, that information will be                    applicable disclosure law. For more
                                                    HUMAN SERVICES                                          posted on http://www.regulations.gov.                 information about FDA’s posting of
                                                                                                              • If you want to submit a comment                   comments to public dockets, see 80 FR
                                                    Food and Drug Administration
                                                                                                            with confidential information that you                56469, September 18, 2015, or access
                                                    [Docket No. FDA–2016–D–2241]                            do not wish to be made available to the               the information at http://www.fda.gov/
                                                                                                            public, submit the comment as a                       regulatoryinformation/dockets/
                                                    Substantiation for Structure/Function                   written/paper submission and in the                   default.htm.
                                                    Claims Made in Infant Formula Labels                    manner detailed (see ‘‘Written/Paper                     Docket: For access to the docket to
                                                    and Labeling: Draft Guidance for                        Submissions’’ and ‘‘Instructions’’).                  read background documents or the
                                                    Industry; Availability                                                                                        electronic and written/paper comments
                                                                                                            Written/Paper Submissions
                                                    AGENCY:    Food and Drug Administration,                                                                      received, go to http://
                                                                                                               Submit written/paper submissions as                www.regulations.gov and insert the
                                                    HHS.                                                    follows:                                              docket number, found in brackets in the
                                                    ACTION:   Notice of availability.                          • Mail/Hand delivery/Courier (for
                                                                                                                                                                  heading of this document, into the
                                                                                                            written/paper submissions): Division of
                                                    SUMMARY:   The Food and Drug                                                                                  ‘‘Search’’ box and follow the prompts
                                                                                                            Dockets Management (HFA–305), Food
                                                    Administration (FDA or we) is                                                                                 and/or go to the Division of Dockets
                                                                                                            and Drug Administration, 5630 Fishers
                                                    announcing the availability of a draft                                                                        Management, 5630 Fishers Lane, Rm.
                                                                                                            Lane, Rm. 1061, Rockville, MD 20852.
                                                    guidance for industry entitled                             • For written/paper comments                       1061, Rockville, MD 20852.
                                                    ‘‘Substantiation for Structure/Function                                                                          Submit written requests for single
                                                                                                            submitted to the Division of Dockets
                                                    Claims Made in Infant Formula Labels                                                                          copies of the draft guidance to the Office
                                                                                                            Management, FDA will post your
                                                    and Labeling.’’ The draft guidance,                                                                           of Nutrition and Food Labeling, Center
                                                                                                            comment, as well as any attachments,
                                                    when finalized, will describe the type                                                                        for Food Safety and Applied Nutrition
                                                                                                            except for information submitted,
                                                    and quality of evidence that we                                                                               (HFS–800), Food and Drug
                                                                                                            marked and identified, as confidential,
                                                    recommend that infant formula                                                                                 Administration, 5001 Campus Dr.,
                                                                                                            if submitted as detailed in
                                                    manufacturers and distributors have to                                                                        College Park, MD 20740. Send two self-
                                                                                                            ‘‘Instructions.’’
                                                    substantiate structure/function claims in                  Instructions: All submissions received             addressed adhesive labels to assist that
                                                    infant formula labels and labeling. This                must include the Docket No. FDA–                      office in processing your request. See
                                                    draft guidance is intended to help infant               2016–D–2241 for ‘‘Substantiation for                  the SUPPLEMENTARY INFORMATION section
                                                    formula manufacturers making                            Structure/Function Claims Made in                     for electronic access to the draft
                                                    structure/function claims comply with                   Infant Formula Labels and Labeling.’’                 guidance.
                                                    the statutory requirement that all claims               Received comments will be placed in                   FOR FURTHER INFORMATION CONTACT:
                                                    in infant formula labeling must be                      the docket and, except for those                        With regard to this draft guidance:
                                                    truthful and not misleading under the                   submitted as ‘‘Confidential                           Gillian Robert-Baldo, Center for Food
                                                    Federal Food, Drug, and Cosmetic Act                    Submissions,’’ publicly viewable at                   Safety and Applied Nutrition (HFS–
                                                    (the FD&C Act).                                         http://www.regulations.gov or at the                  850), Food and Drug Administration,
                                                    DATES: Although you can comment on                      Division of Dockets Management                        5001 Campus Dr., College Park, MD
                                                    any guidance at any time (see 21 CFR                    between 9 a.m. and 4 p.m., Monday                     20740, 240–402–1451.
                                                    10.115(g)(5)), to ensure that we consider               through Friday.                                         With regard to the information
                                                    your comment on the draft guidance                         • Confidential Submissions—To                      collection issues: Domini Bean, Office of
                                                    before we begin work on the final                       submit a comment with confidential                    Information Management, Food and
                                                    version of the guidance, submit either                  information that you do not wish to be                Drug Administration, 1350 Piccard Dr.,
                                                    electronic or written comments on the                   made publicly available, submit your                  PI50–400T, Rockville, MD 20850,
                                                    draft guidance by November 8, 2016.                     comments only as a written/paper                      domini.bean@fda.hhs.gov.
                                                    ADDRESSES: You may submit comments                      submission. You should submit two                     SUPPLEMENTARY INFORMATION:
                                                    as follows:                                             copies total. One copy will include the
                                                                                                            information you claim to be confidential              I. Background
                                                    Electronic Submissions                                  with a heading or cover note that states                 We are announcing the availability of
asabaliauskas on DSK3SPTVN1PROD with NOTICES




                                                      Submit electronic comments in the                     ‘‘THIS DOCUMENT CONTAINS                              a draft guidance for industry entitled
                                                    following way:                                          CONFIDENTIAL INFORMATION.’’ The                       ‘‘Substantiation for Structure/Function
                                                      • Federal eRulemaking Portal: http://                 Agency will review this copy, including               Claims Made in Infant Formula Labels
                                                    www.regulations.gov. Follow the                         the claimed confidential information, in              and Labeling.’’ We are issuing this draft
                                                    instructions for submitting comments.                   its consideration of comments. The                    guidance consistent with our good
                                                    Comments submitted electronically,                      second copy, which will have the                      guidance practices regulation (21 CFR
                                                    including attachments, to http://                       claimed confidential information                      10.115). The draft guidance, when
                                                    www.regulations.gov will be posted to                   redacted/blacked out, will be available               finalized, will represent our current


                                               VerDate Sep<11>2014   17:11 Sep 08, 2016   Jkt 238001   PO 00000   Frm 00040   Fmt 4703   Sfmt 4703   E:\FR\FM\09SEN1.SGM   09SEN1


                                                    62510                       Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Notices

                                                    thinking on substantiation of structure/                   Description of respondents: This new               structure/function claims), as shown in
                                                    function claims in infant formula labels                collection of information would be                    table 1.
                                                    and labeling. It does not establish any                 performed by infant formula                              We have estimated the annual
                                                    rights for any person and is not binding                manufacturers and distributors. The                   information collection burdens for
                                                    on FDA or the public. You can use an                    records recommended, to the extent                    maintenance of records related to
                                                    alternate approach if it satisfies the                  practicable, in this draft guidance would             substantiation of existing structure/
                                                    requirements of the applicable statutes                 include one-time and annual                           function claims. We estimate that
                                                    and regulations.                                        information collection burdens                        respondents would spend 1 hour
                                                       The draft guidance, when finalized,                  pertaining to substantiation of structure/            annually maintaining records for each of
                                                    will describe the type and quality of                   function claims made by infant formula                the 10 estimated currently existing
                                                    evidence we recommend that infant                       manufacturers and distributors. In                    structure/function claims. Therefore, 1
                                                    formula manufacturers and distributors                  addition, we have estimated the                       hour × 10 claims = 10 annual hours, as
                                                    have in their records to substantiate                   information collection burden for any                 presented in table 1.
                                                    their structure/function claims in the                  future structure/function claims that                    It is possible that an infant formula
                                                    labeling of infant formulas. It will                    would involve controlled studies to                   manufacturer or distributor would want
                                                    describe what we believe to be                          generate data to support those structure/             to make a structure/function claim for
                                                    competent and reliable scientific                       function claims.                                      which there is equivocal or insufficient
                                                    evidence to substantiate structure/                        The draft guidance document for                    evidence or no substantiating evidence.
                                                    function claims in the context of infant                industry entitled ‘‘Substantiation for                In this case, we estimate that an infant
                                                    formulas.                                               Structure/Function Claims Made in                     formula manufacturer or distributor
                                                                                                            Infant Formula Labels and Labeling’’                  would conduct a controlled study in
                                                    II. Paperwork Reduction Act of 1995                                                                           order to gather data to substantiate the
                                                       This draft guidance contains proposed                addresses only structure/function
                                                                                                                                                                  structure/function claim. It is not
                                                    information collection provisions that                  claims in infant formula labeling. It
                                                                                                                                                                  possible to know the frequency with
                                                    are subject to review by the Office of                  describes the type and quality of
                                                                                                                                                                  which this may occur; however, we
                                                    Management and Budget (OMB) under                       evidence we recommend infant formula
                                                                                                                                                                  assume that an infant formula
                                                    the Paperwork Reduction Act of 1995                     manufacturers and distributors have to
                                                                                                                                                                  manufacturer or distributor would
                                                    (the PRA) (44 U.S.C. 3501–3520).                        substantiate their structure/function
                                                                                                                                                                  engage in a controlled study only if the
                                                    ‘‘Collection of information’’ is defined                claims in labeling of both nonexempt
                                                                                                                                                                  benefits to the infant formula
                                                    in 44 U.S.C. 3502(3) and 5 CFR                          and exempt infant formulas under
                                                                                                                                                                  manufacturer or distributor were larger
                                                    1320.3(c) and includes Agency requests                  section 403(a) of the FD&C Act (21
                                                                                                                                                                  than the costs of performing the study.
                                                    or requirements that members of the                     U.S.C. 343(a)(1)).                                    To account for the possibility that infant
                                                    public submit reports, keep records, or                    Analysis of Burden Estimates                       formula manufacturers or distributors
                                                    provide information to a third party.                   Resulting From Substantiation for Infant              would choose to conduct a controlled
                                                    Section 3506(c)(2)(A) of the PRA (44                    Formula Structure/Function Claims:                    study for the purpose of generating data
                                                    U.S.C. 3506(c)(2)(A)) requires Federal                  Infant formula manufacturers and                      to substantiate a new structure/function
                                                    Agencies to provide a 60-day notice in                  distributors would only collect                       claim, in table 2 we estimate an
                                                    the Federal Register for each proposed                  information to substantiate their                     information collection burden based on
                                                    collection of information before                        product’s structure/function claim if                 one hypothetical annual controlled
                                                    submitting the collection to OMB for                    they choose to place a structure/                     study. The burdens of this hypothetical
                                                    approval. To comply with this                           function claim on their product’s label               controlled study are based on averages
                                                    requirement, we are publishing this                     or labeling. Gathering evidence on a                  taken from three sample controlled
                                                    notice of the proposed collection of                    currently existing claim is estimated to              studies (Refs. 1, 2, and 3) and estimates
                                                    information set forth in this document.                 be a one-time burden; the respondents                 an average test subject size of 153
                                                       With respect to the collection of                    would collect the substantiating                      infants.
                                                    information associated with this draft                  information for their product pursuant                   We estimate that a hypothetical
                                                    guidance, we invite comments on these                   to section 403(a) of the FD&C Act. We                 controlled study would involve, on
                                                    topics: (1) Whether the proposed                        recommend that infant formula                         average, four recordkeepers: A principal
                                                    collection of information is necessary                  manufacturers and distributors                        investigator (e.g., a physician), a sample
                                                    for the proper performance of FDA’s                     accurately maintain the substantiating                collector, one nurse or other health care
                                                    functions, including whether the                        materials for these claims in their files.            professional with similar experience,
                                                    information will have practical utility;                We estimate that infant formula                       and a microbiological laboratory
                                                    (2) the accuracy of FDA’s estimate of the               manufacturers and distributors would                  technologist. We estimate that the
                                                    burden of the proposed collection of                    seek substantiation for their claims in               principal investigator would work, on
                                                    information, including the validity of                  intervention studies and the scientific               average, 3 hours annually to assemble
                                                    the methodology and assumptions used;                   literature and that this burden will                  and interpret the data collected per
                                                    (3) ways to enhance the quality, utility,               likely be comparable to the time needed               study period. We estimate that one
                                                    and clarity of the information collected;               to assemble information for a new infant              sample collector would work an average
                                                    and (4) ways to minimize the burden of                  formula submission (16 hours). In                     of 38.25 hours annually (153 infants ×
                                                    the information collected on                            addition, we estimate, based on                       0.25 hours per infant = 38.25 hours) to
                                                    respondents, including through the use                  information available to FDA, that there              collect and record stool samples from
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                                                    of automated collection techniques,                     are currently 10 existing structure/                  infants. We estimate that one nurse or
                                                    when appropriate, and other forms of                    function claims for which infant                      other health care professional with
                                                    information technology.                                 formula manufacturers would gather                    similar experience would work an
                                                       Title: Recommended Recordkeeping                     substantiation data. Therefore, the total             average of 38.25 hours annually (153
                                                    to Substantiate Structure/Function                      one-time estimated burden imposed by                  infants × 0.25 hours per infant = 38.25
                                                    Claims Made in Infant Formula Labels                    this collection of information would be               hours) to complete questionnaires on
                                                    and Labeling (OMB Control Number                        160 hours (16 estimated information                   the samples collected from the infants
                                                    0910—NEW).                                              collection hours × 10 estimated existing              in the study. We estimate that a


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                                                                                     Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Notices                                                                                        62511

                                                    microbiological laboratory technologist                        collection burden resulting from the                                         one-time burden of 160 hours
                                                    would work an average of 76.5 hours                            need to conduct a controlled study in                                        annualized over 3 years (160/3 = 53.3),
                                                    annually (153 infants × 0.5 hours per                          order to gather data to substantiate a                                       the total annual record keeping burden
                                                    infant = 76.5 hours) to prepare and                            new structure/function claim, or a                                           is 219.3 hours (166 + 53.3 = 219.3).
                                                    analyze fecal samples taken from infants                       structure/function claim that lacks                                          There are no estimated capital costs or
                                                    in the controlled study. All estimates                         sufficient prior evidence, for a total of                                    operating and maintenance costs
                                                    are shown in table 2. Therefore, a total                       166 total annual hours (156 + 10 = 166)                                      associated with this information
                                                    of 156 additional annual burden hours                          for the upkeep and generation of                                             collection.
                                                    (3 + 38.25 + 38.25 + 76.5 = 156) are                           information used to substantiate
                                                    estimated to account for the information                       structure/function claims. Including the

                                                                                             TABLE 1—ESTIMATED ONE-TIME HOURLY RECORDKEEPING BURDEN
                                                                                                                                                                   First year
                                                                                                                                        Number of                                                                         Hours per
                                                                           Recordkeeping activity                                                                frequency of                Total records                                        Total hours
                                                                                                                                       respondents                                                                         record
                                                                                                                                                                recordkeeping

                                                                                                                                   First Year Hourly Burden

                                                    Assembling Records Related to Substantiation of Existing
                                                      Structure/Function Claims ................................................                        10                            1                         10                        16               160

                                                         Total First Year Only Recordkeeping Burden ..............                   ........................   ........................    ........................   ........................           *160


                                                                                                                     TABLE 2—RECORDKEEPING BURDEN
                                                                                                                                                      Annual
                                                                                                                         Number of
                                                                     Recordkeeping activity                                                        frequency of               Total records                   Hours per record                    Total hours
                                                                                                                        respondents               recordkeeping

                                                                                                                                   Recurring Hourly Burden

                                                    *Annualized Recordkeeping Burden from Table 1                                         10                          1                         5.3     1 ....................................            53.3
                                                    Maintaining Records Related to Substantiation of                                      10                          1                         10      1 ....................................             10
                                                      Structure/Function Claims.
                                                    Controlled Study—Principal Investigator ..............                                  1                       1                            1      3 ....................................               3
                                                    Controlled Study—Sample Collector ....................                                  1                     153                          153      0.25 (15 minutes) .........                      38.25
                                                    Controlled Study—Nurse/Heath Care Profes-                                               1                     153                          153      0.25 (15 minutes) .........                      38.25
                                                      sional.
                                                    Controlled Study—Lab Tech ................................                              1                     153                          153      0.5 (30 minutes) ...........                      76.5

                                                         Total Recordkeeping Burden ........................          ........................   ........................    ........................   .......................................          219.3



                                                      Before the proposed information                              persons between 9 a.m. and 4 p.m.,                                           DEPARTMENT OF HEALTH AND
                                                    collection provisions contained in this                        Monday through Friday; they are also                                         HUMAN SERVICES
                                                    draft guidance become effective, we will                       available electronically at http://
                                                    publish a notice in the Federal Register                       www.regulations.gov.                                                         Health Resources and Services
                                                    announcing OMB’s decision to approve,                          1. Moro, G., F. Mosca, V. Miniello, et al.,
                                                                                                                                                                                                Administration
                                                    modify, or disapprove the proposed                                  ‘‘Effects of a New Mixture of Prebiotics
                                                    information collection provisions. An                               on Faecal Flora and Stools in Term                                      Agency Information Collection
                                                    Agency may not conduct or sponsor,                                  Infants.’’ Acta Paediatrica, 2003.                                      Activities: Submission to OMB for
                                                    and a person is not required to respond                             Supplement September 1991(441): pp.                                     Review and Approval; Public Comment
                                                    to, a collection of information unless it                           77–79.                                                                  Request; Maternal, Infant, and Early
                                                    displays a currently valid OMB control                         2. Boehm, G., M. Lidestri, P. Casetta,, et al.,                              Childhood Home Visiting Program
                                                                                                                        ‘‘Supplementation of a Bovine Milk                                      Cost Reporting Pilot Study
                                                    number.                                                             Formula with an Oligosaccharide
                                                    III. Electronic Access                                              Mixture Increases Counts of Faecal                                      AGENCY: Health Resources and Services
                                                                                                                        Bifidobacteria in Preterm Infants.’’                                    Administration (HRSA), Department of
                                                      Persons with access to the Internet                               Archives of Disease in Childhood Fetal                                  Health and Human Services.
                                                    may obtain the draft guidance at either                             and Neonatal Edition, 2002. 86(3): pp.                                  ACTION: Notice.
                                                    http://www.fda.gov/FoodGuidances or                                 F178–181.
                                                    http://www.regulations.gov. Use the                            3. Pickering, L.K., D.M. Granoff, J.R.                                       SUMMARY:   In compliance with section
                                                                                                                        Erickson, et al., ‘‘Modulation of the                                   3507(a)(1)(D) of the Paperwork
                                                    FDA Web site listed in the previous
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                                                                                                                        Immune System by Human Milk and
                                                    sentence to find the most current                                   Infant Formula Containing Nucleotides.’’
                                                                                                                                                                                                Reduction Act of 1995, HRSA has
                                                    version of the guidance.                                            Pediatrics, 1998. 101(2): pp. 242–249.                                  submitted an Information Collection
                                                                                                                                                                                                Request (ICR) to the Office of
                                                    IV. References                                                   Dated: August 29, 2016.                                                    Management and Budget (OMB) for
                                                      The following references are on                              Leslie Kux,                                                                  review and approval. Comments
                                                    display in the Division of Dockets                             Associate Commissioner for Policy.                                           submitted during the first public review
                                                    Management (see ADDRESSES) and are                             [FR Doc. 2016–21725 Filed 9–8–16; 8:45 am]                                   of this ICR will be provided to OMB.
                                                    available for viewing by interested                            BILLING CODE 4164–01–P                                                       OMB will accept further comments from


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Document Created: 2018-02-09 13:15:25
Document Modified: 2018-02-09 13:15:25
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionNotice of availability.
DatesAlthough you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that we consider your comment on the draft guidance before we begin work on the final version of the guidance, submit either electronic or written comments on the draft guidance by November 8, 2016.
ContactWith regard to this draft guidance: Gillian Robert-Baldo, Center for Food Safety and Applied Nutrition (HFS-850), Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740, 240-402-1451.
FR Citation81 FR 62509 

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