The Agricultural Marketing Service, a division of the United States Department of Agriculture ("USDA"), will begin audits in July 2009 to ensure compliance with the Country of Origin Labeling ("COOL") Program Rule that took effect March 16, 2009. The 2002 and 2008 Farm Bills amended the Agricultural Marketing Act of 1946 to require retailers to notify their customers of the country of origin for numerous commodities (listed below). While many categorize COOL as a food safety or traceability program, it is really a consumer information program. The law contains enforcement provisions that include civil penalties of up to $1,000 for each violation.

The COOL regulation requires country of origin labeling for the following commodities sold by designated retailers:

  • muscle cuts and ground beef (including veal), pork, lamb, goat, and chicken;
  • wild and farm-raised fish and shellfish;
  • fresh and frozen fruits and vegetables; and
  • peanuts, pecans, macadamia nuts, and ginseng.

The COOL regulation includes various record retention requirements highlighted below.

Suppliers

A supplier must make available information to the retailer about the country of origin of the covered commodity. A supplier is any person engaged in the business of supplying a covered commodity to a retailer. Information may be provided on the product itself, on the master shipping container or in a document that accompanies the product through retail sale. A supplier must possess records that are necessary to substantiate the claim for a period of one (1) year from the date of the transaction. A supplier can utilize producer affidavits to support country of origin claims. A supplier may keep the records at any location. However, a supplier must be able to provide the records, upon request, to a USDA representative within five (5) business days of the request.

Slaughter Facilities

Slaughter facilities are responsible for initiating the county of origin declaration for beef, lamb, pork, chicken, and goat. Producer affidavits are acceptable records that suppliers may utilize to initiate origin claims, provided they are made by someone having first-hand knowledge of the origin of the covered commodity and identify the covered commodity unique to the transaction. In addition, packers that slaughter animals that are tagged with an Animal and Plant Health Inspection Service, 840 National Animal Identification Number device without the presence of any additional accompanying marking (i.e., “CAN” or “M”) may use that information as a basis for a U.S. origin claim. Packers that slaughter animals that are part of another country’s recognized official system (e.g. Canadian official system, Mexico official system) may also rely on the presence of an official ear tag or other approved device on which to base their origin claims.

Importers

Imported products shall retain their origin as declared to U.S. Customs & Border Protection at the time the product enters the United States through retail sale, provided the products have not undergone a substantial transformation in the United States. The importer of record must ensure that the records provide clear product tracking from the port of entry to the immediate subsequent recipient and accurately reflect the country of origin. Such records must be maintained for a period of one (1) year from the date of the transaction.

Retailers

Retailers must keep records or other documentary evidence relied upon at the point of sale by the retailer to establish the country of origin and, as applicable, the method of production for covered commodities. Generally, the retailer simply passes along the information obtained from suppliers, slaughtering facilities and importers. The retailer must maintain the records in electronic or hard copy format for as long as the product is on hand. For pre-labeled products, the label itself is sufficient and no additional records are necessary. The retailer may keep the records at the store or another location. However, the retailer must be able to provide the records, upon request, to a USDA representative within five (5) business days of the request.

Retailers are to convey the origin and method of production information provided to them by their suppliers. The retailer cannot initiate a multiple country of origin and/or method of production designation unless the retailer physically commingles a covered commodity of different origins or production methods. For example, if the retailer commingles fish in a full service fish case from different countries of origin, then the retailer can initiate a multiple country of origin that reflects the actual countries of origin.

Others

Any person engaged in the business of supplying a covered commodity to a retailer, whether directly or indirectly, must maintain records to establish and identify the immediate previous source (if applicable) and immediate subsequent recipient of a covered commodity for a period of one (1) year from the date of the transaction. This requirement applies to all harvesters, producers, distributors, handlers and processors.