[Federal Register Volume 59, Number 230 (Thursday, December 1, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-29519] [[Page Unknown]] [Federal Register: December 1, 1994] ----------------------------------------------------------------------- DEPARTMENT OF HEALTH AND HUMAN SERVICES 21 CFR Part 172 [Docket Nos. 92F-0053 and 92F-0333] Food Additives Permitted for Direct Addition to Food for Human Consumption; Acesulfame Potassium AGENCY: Food and Drug Administration, HHS. Action: Final rule. ----------------------------------------------------------------------- SUMMARY: The Food and Drug Administration (FDA) is amending the food additive regulations to provide for the safe use of acesulfame potassium as a nonnutritive sweetener in yogurt and yogurt-type products, in frozen and refrigerated desserts, and in syrups, sweet sauces, and toppings. This action is in response to petitions filed by Hoechst Celanese Corp. and Kraft General Foods. DATES: Effective December 1, 1994; written objections and requests for a hearing by January 3, 1995. ADDRESSES: Submit written objections to the Dockets Management Branch (HFA-305), Food and Drug Administration, rm. 1-23, 12420 Parklawn Dr., Rockville, MD 20857. FOR FURTHER INFORMATION CONTACT: Patricia A. Hansen, Center for Food Safety and Applied Nutrition (HFS-206), Food and Drug Administration, 200 C St. SW., Washington, DC 20204, 202-254-9523. SUPPLEMENTARY INFORMATION: In a notice published in the Federal Register of March 23, 1992 (57 FR 10028), FDA announced that a food additive petition (FAP 2A4311) had been filed by Hoechst Celanese Corp., Rt. 202-206 North, Somerville, NJ 08876. The petition proposed that Sec. 172.800 Acesulfame potassium (21 CFR 172.800) be amended to provide for the safe use of acesulfame potassium as a nonnutritive sweetener in yogurt and yogurt-type products, in frozen and refrigerated desserts, and in syrups and toppings. In a notice published in the Federal Register of October 29, 1992 (57 FR 49090), FDA announced that a food additive petition (FAP 2A4314) had been filed by Kraft General Foods, 250 North St., White Plains, NY 10625. The petition proposed that Sec. 172.800 be amended to provide for the use of acesulfame potassium as a nonnutritive sweetener in table syrups, including sweet sauces and toppings. I. Determination of Safety Under section 409(c)(3)(A) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 348(c)(3)(A)), the so-called ``general safety clause,'' a food additive cannot be listed for a particular use unless a fair evaluation of the evidence establishes that the additive is safe for that use. The concept of safety embodied in the Food Additives Amendment of 1958 is explained in the legislative history of the provision: ``Safety requires proof of a reasonable certainty that no harm will result from the proposed use of the additive. It does not-- and cannot--require proof beyond any possible doubt that no harm will result under any conceivable circumstance'' (H. Rept. 2284, 85th Cong., 2d sess. 4 (1958)). This concept of safety has been incorporated into FDA's food additive regulations (21 CFR 170.3(i)). The food additives anticancer, or Delaney, clause (section 409(c)(3)(A) of the act) further provides that no food additive shall be deemed to be safe if it is found to induce cancer when ingested by man or animal. Importantly, however, the Delaney clause applies to the additive itself and not to constituents of the additive. Thus, where an additive has not been shown to cause cancer, even though it contains a carcinogenic impurity, the additive is not subject to the legal effect of the Delaney clause. Rather, the additive is properly evaluated under the general safety clause using risk assessment procedures to determine whether there is a reasonable certainty that no harm will result from the proposed use of the additive (Scott v. FDA, 728 F.2d 322 (6th Cir. 1984)). II. Evaluation of Safety of the Petitioned Use of the Additive In its original review of asulfame potassium in 1988, FDA concluded that a review of animal feeding studies showed that there is no association between neoplastic disease (cancer) and consumption of this additive (53 FR 28379 at 28380 and 28381, July 28, 1988). No new information has been received that would change that conclusion. Therefore, FDA has evaluated the safety of the petitioned uses of this additive under the general safety clause, considering all available data. In determining whether the proposed use of an additive is safe, FDA considers, among other things, whether an individual's estimated daily intake of the additive will be less than the acceptable daily intake established from toxicological information. The agency has established an acceptable daily intake for acesulfame potassium of 15 milligrams per kilogram (mg/kg) of body weight per day (or 900 mg per person per day (mg/p/d)). The agency described its analysis of the data that led to the establishment of the acceptable daily intake in its original decision on the use of acesulfame potassium (53 FR 28379). The agency has considered consumer exposure to acesulfame potassium resulting from uses listed in this regulation, as well as all currently regulated uses and other petitioned uses, including those that are the subject of regulations published elsewhere in this issue of the Federal Register. FDA has calculated the 90th percentile estimated daily intake from these combined uses to be 180 mg/p/d, which is well below the acceptable daily intake. A. Special Conditions Relevant to the Petitioned Uses The uses of acesulfame potassium that are the subject of the petitions specified previously in this document may subject the sweetener to conditions other than those considered in the petition that supported the promulgation of Sec. 172.800, or those considered in the petitions that supported amendments to Sec. 172.800. FDA has evaluated data in the subject petitions and other information regarding the stability of acesulfame potassium under a variety of temperature, moisture content, and pH conditions that characterize the proposed uses. Even under extreme temperature conditions simulating those of ultrahigh temperature pasteurization, no detectable amounts of decomposition products were found. The agency concludes that acesulfame potassium is stable under the proposed conditions of use. B. Methylene Chloride The manufacturing process referred to in the petitions for acesulfame potassium differs from that described in the petition that was the basis for the promulgation of Sec. 172.800. In the new process, methylene chloride is used as a solvent in the initial step in the process. Subsequently, the product is neutralized, stripped of methylene chloride, and recrystallized from water. Data were submitted by the petitioner showing that methylene chloride could not be detected in the final product at a limit of detection of 40 parts per billion (ppb). FDA, in its evaluation of the safety of acesulfame potassium, reviewed both the safety of the additive and of the chemical impurities that may be present in the additive as a result of the manufacturing process. Residual amounts of reactants and manufacturing aids are commonly found as contaminants in chemical products, including food additives. The agency has used risk assessment procedures to estimate the upper-bound limit of risk presented by methylene chloride, a carcinogenic chemical, that may be present as an impurity in the additive. This risk evaluation has two aspects: (1) Assessment of the human exposure to the impurity from the proposed use of the additive; and (2) extrapolation of the risk observed in the animal bioassays to the conditions of probable human exposure. FDA has estimated the hypothetical worst-case exposure to methylene chloride from both the currently regulated and the petitioned uses of acesulfame potassium to be 3.6 nanograms (ng)/p/d (Ref. 1). This estimate is based on the assumption that methylene chloride is present in acesulfame potassium at a level of 20 ppb, one-half its detection limit (Ref. 2). Because it is a volatile compound that is removed from the additive prior to further purification, FDA does not expect it to be present even at that very low level (Ref. 1). Using risk assessment procedures, FDA used data from the National Toxicology Program report of a bioassay on methylene chloride (Ref. 3) to calculate the potency, or unit risk, from exposure to this chemical (Ref. 4). The results of the bioassay on methylene chloride demonstrated that the material was carcinogenic for mice under the conditions of the study. The test material induced benign and malignant neoplasms in both the liver and lung of both sexes when administered by inhalation. The agency also evaluated data from a second study, in mice of the same strain as used in the inhalation study, in which methylene chloride was administered in the drinking water (Ref. 5). In this second study, there was no significant increase in the incidence of neoplasms at any site examined. However, assuming that methylene chloride would induce neoplasia at a dose just above the highest level tested in the drinking water study, a maximum potency for ingested methylene chloride can be estimated. This estimate is approximately the same as the potency calculated from the data of the inhalation study, providing confidence that using the inhalation study for upper-bound risk assessment is not likely to underestimate any potential risk due to ingested methylene chloride (Ref. 4). Based on a potential exposure of 3.6 ng/p/d, FDA estimates that the upper-bound limit of individual lifetime risk from the potential exposure to methylene chloride resulting from the use of acesulfame potassium is 2.6 x 10-11, or less than 3 in 100 billion (Ref. 6). Because of the numerous conservative assumptions used in calculating the exposure estimate, actual lifetime averaged individual daily exposure to methylene chloride is expected to be substantially less than the estimated worst-case exposure, and therefore, the estimated upper-bound limit of risk would be substantially higher than any actual risk. Thus, the agency concludes that there is a reasonable certainty of no harm from the exposure to methylene chloride that might result from the proposed uses of acesulfame potassium. The agency has also considered whether a specification is necessary to control the amount of methylene chloride impurity in the food additive. While FDA would ordinarily establish a specification for a carcinogenic constituent in a direct food additive, the agency finds that specifications are not needed in this case for the following reasons: (1) Methylene chloride is a volatile material that is used early in the manufacturing process for the additive and then removed from the additive. Several steps occur after methylene chloride is removed and before the additive is added to food. Therefore, the agency would not expect this impurity to become a component of food at other than an extremely low level. (2) Methylene chloride has not been detected in any samples tested even at a limit of detection of 40 ppb, a level that is several orders of magnitude below levels that would present any public health concerns. (3) Finally, the upper-bound limit of lifetime risk from exposure to this impurity, even under worst-case assumptions, is very low, less than 3 in 100 billion. Thus, FDA believes that there is no reasonable possibility that methylene chloride will be present in amounts that present a health concern and sees no justification for requiring manufacturers to monitor compliance with a specification. III. Conclusion of Safety FDA has evaluated the data in the petitions and other relevant material and concludes that the use of acesulfame potassium in yogurt and yogurt-type products, frozen and refrigerated desserts, and in syrups, sweet sauces, and toppings is safe. Therefore, the agency concludes that Sec. 172.800 should be amended as set forth below. In accordance with Sec. 171.1(h) (21 CFR 171.1(h)), the petitions and the documents that FDA considered and relied upon in reaching its decision to approve the petitions are available for inspection at the Center for Food Safety and Applied Nutrition by appointment with the information contact person listed above. As provided in 21 CFR 171.1(h), the agency will delete from the documents any materials that are not available for public disclosure before making the documents available for inspection. IV. Environmental Impact The agency has carefully considered the potential environmental effects of this action. FDA has concluded that the action will not have a significant impact on the human environment, and that an environmental impact statement is not required. The agency's finding of no significant impact and the evidence supporting that finding, contained in an environmental assessment, may be seen in the Dockets Management Branch (address above) between 9 a.m. and 4 p.m., Monday through Friday. V. Objections Any person who will be adversely affected by this regulation may at any time on or before January 3, 1995, file with the Dockets Management Branch (address above) written objections thereto. Each objection shall be separately numbered, and each numbered objection shall specify with particularity the provisions of the regulation to which objection is made and the grounds for the objection. Each numbered objection on which a hearing is requested shall specifically so state. Failure to request a hearing for any particular objection shall constitute a waiver of the right to a hearing on that objection. Each numbered objection for which a hearing is requested shall include a detailed description and analysis of the specific factual information intended to be presented in support of the objection in the event that a hearing is held. Failure to include such a description and analysis for any particular objection shall constitute a waiver of the right to a hearing on the objection. Three copies of all documents shall be submitted and shall be identified with the docket number found in brackets in the heading of this document. Any objections received in response to the regulation may be seen in the Dockets Management Branch between 9 a.m. and 4 p.m., Monday through Friday. VI. References The following references have been placed on display in the Dockets Management Branch (address above) and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday. 1. Memorandum from M. DiNovi, Chemistry Review Branch, to P. Hansen, Biotechnology Policy Branch, dated August 14, 1992. 2. Memorandum from M. DiNovi, Chemistry Review Branch, to P. Hansen, Biotechnology Policy Branch, dated November 9, 1994. 3. ``Technical Report on the Toxicology and Carcinogenesis Studies of Dichloromethane (Methylene Chloride) in F344/N Rats and B6C3F1 Mice,'' NTP Draft Report, NTP-TR-306, National Institute of Health Publication No. l-85-2562, 1985. 4. Memorandum from the Quantitative Risk Assessment Committee, dated November 15, 1985. 5. National Coffee Association, ``24-Month Oncogenicity Study of Methylene Chloride in Mice--Final Report; Vol. 1,'' Hazelton Laboratories America, Inc., Vienna, VA, November 30, 1983. 6. Memorandum from P. Hansen, Biotechnology Policy Branch, to S. Henry, Quantitative Risk Assessment Committee, dated June 24, 1993. List of Subjects in 21 CFR Part 172 Food additives, Reporting and recordkeeping requirements. Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 172 is amended as follows: PART 172--FOOD ADDITIVES PERMITTED FOR DIRECT ADDITION TO FOOD FOR HUMAN CONSUMPTION 1. The authority citation for 21 CFR part 172 continues to read as follows: Authority: Secs. 201, 401, 402, 409, 701, 721 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321, 341, 342, 348, 371, 379e). 2. Section 172.800 is amended by adding new paragraphs (c)(9) through (c)(11) to read as follows: Sec. 172.800 Acesulfame potassium. * * * * * (c) * * * (9) Yogurt and yogurt-type products. (10) Frozen and refrigerated desserts. (11) Sweet sauces, toppings, and syrups. * * * * * Dated: November 18, 1994. William K. Hubbard, Interim Deputy Commissioner for Policy. [FR Doc. 94-29519 Filed 11-30-94; 8:45 am] BILLING CODE 4160-01-F