On October 29, 2013, the FDA proposed an animal feed rule pursuant to the Food Safety Modernization Act (“FSMA”) entitled “Current Good Manufacturing Practice and Hazard Analysis and Risk-Based Preventive Controls for Food for Animals.”  The purpose of the proposed rule was to improve the safety of pet food and animal feed by requiring facilities that produce animal food to implement processes that would help keep animal food safe.  During the comment period, which closed on March 31, 2014, the FDA heard many questions from brewers and distillers regarding whether the proposed rule would prohibit them from providing spent grains for animal feed.  In response to these comments, the FDA released guidance answering some of the questions raised.

The FDA first explained that spent grains are by-products from brewing and distilling alcoholic beverages and are generally used as animal feed.  The FDA analyzed spent grains and determined that the potential hazards associated with using such grains as animal food are small.  However, as the proposed rule is currently written, brewers or distillers who sell the spent grain by-products to farmers who will then use the grains as animal food must follow current good manufacturing practice regulations.  In addition, brewers or distillers that do not meet the small business exemption must identify hazards that could reasonably occur in a written food safety plan and implement preventive controls in an attempt to avoid those hazards.

The question and answer document further explained that, as the rule is currently written, it is flexible and would not require brewers and distillers to take specific actions, including packaging or drying spent grains.  The FDA will also not require brewers or distillers to take any spent grains to landfills.

Although the FDA is currently unaware of any contamination that has occurred from the use of spent grains as animal feed, the FDA is addressing preventive controls for spent grains used as animal feed because the FSMA requires the FDA to create rules that will help prevent food safety problems in food used for humans and animals instead of responding to food safety issues once they have occurred.  Because the FDA is unable to anticipate what types of animal food could be contaminated during the manufacturing, packaging, or holding processes, the proposed rule covers a wide array of food products for animals, including spent grains.

The FDA concluded by stating that it plans to publish a revised version of the proposed rule later this summer.  The agency has also agreed that it will issue a final rule for the preventive controls for animal food by August 30, 2015.

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