The Federal Food, Drug, and Cosmetic Act does not require that shrimp be graded for size. When shrimp are graded for size, certain descriptive names have been used by the industry for many years to designate the size of canned shrimp. These descriptive size names were recognized under the Seafood Inspection Service which was operated by the Food and Drug Administration under authority of Section 702a of the Federal Food, Drug, and Cosmetic Act. As the result of many years of usage, these descriptive size names have become familiar to canned shrimp consumers as meaning shrimp within certain size ranges.
Furthermore, shrimp were canned for many years before the advent of machine picking, and because of practical problems, shrimp smaller than those classified as "small" were not ordinarily canned. Thus, consumers were led to expect the canned article, when labeled unqualifiedly as "shrimp," to consist of shrimp no smaller than that classified as "small." The Federal Food, Drug, and Cosmetic Act prohibits labeling which is false and misleading in any particular, including that which is misleading by reason of failure to reveal material facts.
*We consider it misleading to label shrimp with one of the descriptive size names when it does not fall within the established size range for that name (see TABLE 1.). We also consider it misleading to label a canned article as "shrimp," when it consists of shrimp smaller than that falling within the established size range for "small" shrimp. When tiny shrimp are packed, this is a material fact which should be revealed to purchasers as a part of the name of the article, i.e., "Tiny Shrimp." "Cocktail" is a term which is descriptive of intended use, rather than of the size of shrimp, and has been used in conjunction with shrimp of various sizes. The term "cocktail" as applied to shrimp is not an acceptable substitute for the word "tiny." However, there is no objection to use of the word "cocktail" in the labeling of canned tiny shrimp, provided the label also bears prominently and conspicuously the word "tiny" in conjunction with the name "shrimp." Similarly, there is no objection to the use of the word "cocktail" in the labeling of other sizes of shrimp suitable for use in cocktails.*
*TABLE 1. Size Designations and Counts of Shrimp in Canned Shrimp*
SIZE NUMBER OF BLANCHED SHRIMP PER OUNCE
DESIGNATION Non-deveined Deveined
COLOSSAL Less than 2-1/2 Less than 2.7
JUMBO Less than 3-1/2 Less than 3.8
LARGE 3-1/2 to 5 Inclusive 3.8 to 5.4 Inclusive
MEDIUM More than 5 but not More than 5.4 but not
more than 9 more than 9.8
SMALL More than 9 but not More than 9.8 but not
more than 17 more than 18.4
TINY More than 17 More than 18.4
*Except for COLOSSAL, the above size designations are defined at 21 CFR 161.173(a)(5)(iv). The final rule establishing these designations was stayed on August 28, 1979 (44 FR 50328).*
*Material between asterisks is new or revised.*
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