In response to an inquiry submitted on behalf of the Chocolate Manufacturers Association concerning the proper labeling of food products that purport to be or are represented as containing "chocolate" or to have a "chocolate flavor", the Associate Commissioner for Regulatory Affairs issued an advisory opinion (Docket Number 86A-0513/AP). The relevant policy expressed in the advisory opinion is quoted under the POLICY heading of this guide.
The label of a nonstandardized food which bears no artificial chocolate flavor or natural flavor derived from a source other than cacao beans may bear the term "chocolate" (in contrast to "chocolate flavor") provided the product meets one of the following conditions:
- The product bears as its only source of chocolate flavoring an ingredient that complies with one of the standards of identity for cacao products found in 21 CFR 163.111; 163.123; 163.130; 163.135; 163.140; or 163.145. In addition, products which comply with 21 CFR 163.153 or 163.155 may bear the term "chocolate" followed by the specific name of the vegetable oil used.
- The product is flavored with cocoa and the food is one that consumers have long recognized as containing cocoa as the characterizing chocolate flavoring ingredient and is one that consumers do not expect to contain a chocolate ingredient. This condition is based on a statement the agency made in the preamble to the final rule on the label declaration of spices, flavoring, colorings, and chemical preservatives (Federal Register dated December 3, 1973 (38 FR 33287 comment #30)). This comment reads:
A question was raised about the proper labeling of products containing cocoa, which have in the past been labeled as "chocolate."
The Commissioner advises that such products as chocolate pudding, made from cocoa rather than chocolate, may continue to be labeled as "chocolate pudding" because the consumer has long recognized that this product may be made from cocoa and does not expect it to contain chocolate. A chocolate bar, on the other hand, is expected to contain chocolate and may not be made from cocoa without being labeled as a "natural chocolate flavored" or "chocolate flavored" candy.
In light of condition (2), the use of the term "chocolate" need not be limited to chocolate cake, chocolate cookies, chocolate pudding, and chocolate milk. We believe that any other nonstandardized food product that contains cocoa as the chocolate flavoring ingredient may bear the term "chocolate" so long as it can be demonstrated that consumers have long recognized that the food product may be made from cocoa and do not expect it to contain some other chocolate ingredient.
The terms "chocolate flavored" or "natural chocolate flavored" must be used on the labeling of any nonstandardized food in which the consumer could reasonably expect a chocolate ingredient but which contains cocoa as the sole source of chocolate flavoring.