amount not to exceed two-thirds of the weight of the emulsifying ingredient used); or

(2) Monoglycerides and diglycerides of fat-forming fatty acids in combination with monosodium phosphate derivatives thereof, in an amount not to exceed 0.5 percent of the weight of the finished food (with or without a vegetable food fat carrier in an amount not to exceed two-thirds of the weight of the emulsifying ingredient used); or

(3) Sorbitan monostearate, complying with the requirements of § 172.842 of this chapter, in an amount not to exceed 1 percent of the weight of the finished food; or

(4) Polysorbate 60, complying with the requirements of § 172.836 of this chapter, in an amount not to exceed 0.5 percent of the weight of the finished food; or

(5) Any combination of two or more of the foregoing each within the limits prescribed in paragraph (d) (1), (2), (3), and (4) of this section provided that the total quantity of any two or all three of the emulsifiers specified in paragraph (d) (2), (3), and (4) of this section does not exceed 1 percent by weight of the finished food and the total quantity of the emulsifiers specified in paragraph (d) (1) and (2) of this section does not exceed 0.5 percent of the weight of the finished food.

(e) Wherever the name of the food appears on the label so conspicuously as to be easily seen under customary conditions of purchase, the statements prescribed in this paragraph showing the optional ingredients used shall immediately and conspicuously precede or follow such name, without intervening written, printed, or graphic matter:

(1) When the food is flavored with an optional ingredient specified in paragraph (c)(8) of this section, the label shall bear the statement "Artificially flavored", "Artificial flavoring added", "With artificial flavoring", "Artificially flavored with ", or "With

an artificial flavoring", the blank being filled in with the specific common name of the artificial flavoring used.

(2) When an optional emulsifying ingredient or combination of ingredients

Buttermilk chocolate, buttermilk chocolate coating conforms to the definition and standard of identity, and is subject to the requirements for label statement of optional ingredients, prescribed for milk chocolate by § 163.130, except that:

(a) The dairy ingredients used are limited to sweet cream buttermilk, concentrated sweet cream buttermilk, dried sweet cream buttermilk, or any combination of two or all of these.

(b) The finished buttermilk chocolate contains less than 3.66 percent by weight of milk fat and, instead of milk solids, it contains not less than 12 percent by weight of sweet cream buttermilk solids.

§ 163.140 Skim milk chocolate.

Skim milk chocolate, sweet skim milk chocolate, skim milk chocolate coating, sweet skim milk chocolate coating conforms to the definition and standard of identity, and is subject to the requirements for label statement of optional ingredients, prescribed for milk chocolate by § 163.130, except that:

(a) The dairy ingredients used are limited to skim milk, concentrated skim milk, evaporated skim milk, sweetened condensed skim milk, nonfat dry milk, and any combination of two or more of these.

(b) The finished skim milk chocolate contains less than 3.66 percent by weight of milk fat and, instead of milk

solids, it contains not less than 12 percent by weight of skim milk solids.

pre

§ 163.145 Mixed dairy product chocolates. (a) The articles for which definitions and standards of identity are scribed by this section are the foods each of which conforms to the definition and standard of identity, and is subject to the requirements for label statement of optional ingredients, prescribed for milk chocolate by § 163.130, except that:

(1) The dairy ingredient used in each such article is a mixture of two or more of the following four components:

(i) Any dairy ingredient or combination of such ingredients specified in § 163.130(b) which is within the limits of the ratios specified therein for nonfat milk solids to milk fat.

(ii) One or more of the five skim milk ingredients specified in § 163.140. (iii) One or more of the three sweet cream buttermilk ingredients specified in § 163.135.

(iv) Malted milk.

(2) Each of the finished articles may contain less than 3.66 percent by weight of milk fat and, instead of milk solids, it contains not less than 12 percent by weight of milk constituent solids of the components used. The quantity of each component used in any such mixture is such that no component contributes less than one-third of the weight of milk constituent solids contributed by that component used in largest proportion. When any such mixture is of components (i) and (ii) of paragraph (a)(1) of this section, the quantity of nonfat milk solids in such mixture is more than 2.43 times the quantity of milk fat therein. For the purposes of paragraph (b) of this section, the designation of each of the components listed above is respectively "Milk", "Skim milk", "Buttermilk”, and "Malted milk”.

(b) The name of each such article is "Chocolate" or "Chocolate coating" preceded by the designations prescribed by paragraph (a) of this section for each component of the dairy ingredients used, such designations appearing in the order of predominance, if any, of the weight of milk constitu

ent solids in each such component, (e.g., "Milk and skim milk chocolate").

§ 163.150 Sweet cocoa and vegetable fat (other than cacao fat) coating.

Sweet cocoa and vegetable fat (other than cacao fat) coating conforms to the definition and standard of identity, and is subject to the requirements for label statement of optional ingredients, prescribed for sweet chocolate by § 163.123, except that:

(a) In its preparation cocoa is used, instead of chocolate liquor, in such quantity that the finished food contains not less than 6.8 percent by weight of the nonfat cacao portion of such cocoa, calculated by subtracting from the weight of cocoa used the weight of cacao fat therein and the weight therein of alkali and seasoning ingredients, if any, dividing the remainder by the weight of the finished food, and multiplying the quotient by 100. (For the purposes of this section, the term "cocoa" means breakfast cocoa, cocoa, low-fat cocoa, or any mixture of two or more of these.)

(b) In its preparation is added one or any combination of two or more vegetable food oils, vegetable food fats, or vegetable food stearins, other than cacao fat, which oil, fat, stearin, or combination has a melting point higher than that of cacao fat. Any such oil or fat may be hydrogenated.

(c) The requirement of § 163.123(a) that the milk constituent solids be less than 12 percent by weight does not apply.

§ 163.153 Sweet chocolate and vegetable fat (other than cacao fat) coating.

(a) Sweet chocolate and vegetable fat (other than cacao fat) coating conforms to the definition and standard of identity, and is subject to the requirements for label statement of optional ingredients, prescribed for sweet chocolate by § 163.123, except that:

(1) In its preparation there is added one or any combination of two or more vegetable food oils or vegetable food fats, other than cacao fat, which oil, fat, or combination may be hydrogenated and which has a melting point lower than that of cacao fat.

(2) Of the emulsifying ingredients and combinations of ingredients listed

in § 163.123(d), only the ingredients specified in § 163.123(d) (1) and (2), alone or in combination, may be used subject to the limitation that the total quantity of these ingredients does not exceed 0.5 percent by weight of the finished food.

(b) The provisions of this section shall not be construed as applicable to any article by reason of the addition thereto of a vegetable food fat other than cacao fat as a carrier of emulsifying ingredients, as authorized and within the limits prescribed § 163.123(d) (1) and (2).

by

§ 163.155 Milk chocolate and vegetable fat (other than cacao fat) coating.

(a) Milk chocolate and vegetable fat (other than cacao fat) coating, sweet milk chocolate and vegetable fat (other than cacao fat) coating conforms to the definition and standard of identity, and is subject to the requirements for label statement of optional ingredients, prescribed for milk chocolate by § 163.130, except that:

(1) In its preparation there is added one or any combination of two or more vegetable food oils or vegetable food fats, other than cacao fat, which oil, fat, or combination may be hydrogenated and which has a melting point lower than that of cacao fat.

(2) Of the emulsifying ingredients and combinations of ingredients listed in § 163.130(d), only the ingredients specified in § 163.130(d) (1) and (2), alone or in combination, may be used subject to the limitation that the total quantity of these ingredients does not exceed 0.5 percent by weight of the finished food.

(b) The provisions of this section shall not be construed as applicable any article by reason of the addition thereto of a vegetable food fat other than cacao fat as a carrier of emulsifying ingredients, as authorized and within the limits prescribed § 163.130(d) (1) and (2).

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PART 164-TREE NUT AND PEANUT PRODUCTS

Subpart A-[Reserved]

Subpart B-Requirements for Specific Standardized Tree Nut and Peanut Products

Sec.

164.110 Mixed nuts.

164.120 Shelled nuts in rigid or semirigid containers.

164.150 Peanut butter.

AUTHORITY: Secs. 401, 701, 52 Stat. 1046 as amended, 1055-1056 as amended by 70 Stat. 919, 72 Stat. 948 (21 U.S.C. 341, 371).

SOURCE: 42 FR 14475, Mar. 15, 1977, unless otherwise noted.

Subpart A-[Reserved]

Subpart B-Requirements for Specific Standardized Tree Nut and Peanut Products

§ 164.110 Mixed nuts.

(a) Mixed nuts is the food consisting of a mixture of four or more of the optional shelled tree nut ingredients, with or without one or more of the optional shelled peanut ingredients, of the kinds prescribed by paragraph (b) of this section; except that when 2 ounces or less of the food is packed in transparent containers, three or more of the optional tree nut ingredients shall be present. Each such kind of nut ingredient when used shall be present in a quantity not less than 2 percent and not more than 80 percent by weight of the finished food. For purposes of this section, each kind of tree nut and peanut is an optional ingredient that may be prepared by any suitable method in accordance with good manufacturing practice. The finished food may contain one or more of the optional nonnut ingredients provided for in paragraph (c) of this section.

(b) The optional shelled nut ingredients referred to in paragraph (a) of this section are:

(1) Almonds, black walnuts, Brazil nuts, cashews, English walnuts (alternatively "walnuts"), filberts, pecans, and other suitable kinds of tree nuts.

(2) Peanuts of the Spanish, Valencia, Virginia, or similar varieties, or any

combination of two or more such varieties.

(c) The optional nonnut ingredients referred to in paragraph (a) of this section consist of suitable substances that are not food additives as defined in section 201(s) of the Federal Food, Drug, and Cosmetic Act; or if they are food additives as so defined, they are used in conformity with regulations established pursuant to section 409 of the act. Nonnut ingredients that perform a useful function are regarded as suitable, except that color additives are not suitable ingredients of the food.

(d) The name of the food is "mixed nuts". If the percentage of a single tree nut ingredient or the total peanut content by weight of the finished food exceeds 50 percent but not 60 percent, the statement "contains up to 60% or "contains 60%

or

"60% -" shall immediately follow the name "mixed nuts" and shall appear on the same background, be of the same color or, in the case of multicolors, in the color showing distinct contrast with the background, and be in letters not less than one-half the height of the largest letter in the words "mixed nuts". The blank is to be filled in with the appropriate name of the predominant nut ingredient; for example, “contains up to 60% pecans" or "contains up to 60% Spanish peanuts". The numbers "70" or "80" shall be substituted for the number "60" when the percentage of the predominant nut ingredient exceeds 60 but not 70, or exceeds 70 but not 80, respectively. Compliance with the requirements for percentage of nut ingredients of this section and the fill of container requirements of § 164.120(c) will be determined by the following procedure:

(1) Take at random from a lot, in the case of containers bearing a weight declaration of 16 ounces or less, at least 24 containers, and for containers bearing a weight declaration of more than 16 ounces, enough containers to provide a total quantity of at least 24 pounds of nuts.

(2) If compliance with § 164.120(c) is to be determined, first follow the procedure set forth therein.

(3) Determine the percent by weight of each nut ingredient present in each container separately. Calculate the average percentage of each nut ingredient present. If the average percent found for each nut ingredient present is 2 percent or more and none of the individual nut ingredients exceeds 80 percent by weight of the finished food, the lot will be deemed to be in compliance with the percentage requirements of paragraph (a) of this section. If the average percent found for a single nut ingredient exceeds 50 percent by weight of the finished food and the average percent found is within the range indicated by the number declared on the label in accordance with this paragraph, the lot will be deemed to be in compliance with the labeling requirements of this paragraph.

(e) Optional nut ingredients and optional nonnut ingredients used in the food, as provided for in paragraphs (b) and (c) of this section, shall be declared on the label by their common names in the order of decreasing predominance by weight except that:

(1) If the Spanish variety of peanuts is used, it shall be declared as "Spanish peanuts". Other varieties of peanuts shall be declared as "peanuts", or alternatively peanuts", the blank being filled in with the varietal name of the peanuts used.

(2) If the peanut ingredient or ingredients as provided for in paragraph (b)(1) of this section are unblanched, the label shall show that fact by such statement as "Peanuts unblanched", "Peanuts skins on", or words of similar import, unless the vignette clearly depicts peanuts with skins on.

(3) Vegetable oils used shall be declared by the words "Vegetable oil" or "Hydrogenated vegetable oil", or alternatively oil", or "Hydrogenatedoil", as the case

66

(f) The words and statements specified in paragraph (e) of this section showing the optional ingredients present shall be listed on the principal display panel or panels or any appropriate information panel without obscuring design, vignettes, or crowding. The declaration shall appear in conspicuous and easily legible letters of boldface print or type the size of which shall be not less than one-half of that required by Part 101 of this chapter for the statement of net quantity of contents appearing on the label, but in no case less than one-sixteenth of an inch in height. The entire ingredient statement shall appear or at least one panel of the label. If the label bears any pictorial representation of the mixture of nuts, it shall depict the relative proportions of the nut ingredients of the food. If the label bears a pictorial representation of only one of each nut ingredient present, the nuts shall be depicted in the order of decreasing predominance by weight. A factual statement that the food does not contain a particular nut ingredient or ingredients may be shown on the label if the statement is not misleading and does not result in an insufficiency of label space for the proper declaration of information required by or under authority of the act to appear on the label.

§ 164.120 Shelled nuts in rigid or semirigid

containers.

(a)-(b) [Reserved]

(c) Fill of container. (1) The standard of fill for shelled nuts in rigid or semirigid containers is a fill such that the average volume of nuts, from te number of containers specified in § 164.110(d)(1), is not less than 85 percent of the container volume as determined by the method in paragraph (c) (2) of this section.

(2) The method for determining the percent of fill is as follows:

(i) For the shelled nuts in each container, determine the loose volume, the settled volume, and the average volume in cubic centimeters. For the purposes of this subparagraph, consid

er volume in milliliters to be numerically equal to volume in cubic centimeters. Open the container and pour the nuts loosely into a vertical graduated cylinder (do not tilt) of appropriate size fitted with a funnel which has been modified, if necessary, to provide a minimum opening of 11⁄2-inch diameter. (If the loose volume of the nuts is less than 500 milliliters, use a 500-milliliter cylinder with an inside diameter of approximately 1% inches; but if the loose volume is 500 milliliters or more, use a 1,000-milliliter cylinder with an inside diameter of approximately 21⁄4 inches.) Without shaking the cylinder, estimate the location of a horizontal plane representing the average height of the product, read the volume of the nuts, and record as the loose volume. Raise the cylinder 2 inches and allow it a free vertical drop onto a level, firm, but resilient surface (do not tamp) for a total of 5 times and observe the volume as above. Repeat in successive five-drop increments until the nuts have so settled that the volume decreases less than 2 percent in the last five-drop increment. Read the last volume in the manner described above and record as the settled volume. The arithmetical average of the loose volume and the settled volume equals the average volume of nuts.

(ii) Classify the container by shape and determine its volume in cubic centimeters according to one of the following methods as appropriate:

(a) For containers of irregular shape, including glass jars, follow the general method for water capacity of containers as prescribed in § 130.12(a) of this chapter and determine the container volume, considering the water capacity in grams to be numerically equivalent to volume in cubic centimeters, or the water capacity in ounces (avoirdupois) to be equivalent to 28.35 cubic centimeters per ounce.

(b) For box-shaped containers (that is, with opposite sides parallel), measure the inside height, width, and depth and calculate the volume as the product of these three dimensions. For such containers used to enclose vacuum packs and containing 4 ounces or less of the product, consider the