*The Federal Food, Drug, and Cosmetic Act contains a specific prohibition against the presence of a non-nutritive substance in confectionery (section 402(d)(3)). Although there is no outright prohibition against the presence of non-nutritive substances in other foods, section 402(b) is applicable in determining the legality of the addition of non-nutritive substances in other food products.*
Decorative cake letters, etc., consisting of sugar and albumen are considered confectionery under the act and must be labeled in compliance with the Federal Food, Drug, and Cosmetic Act and the Fair Packaging and Labeling Act.
*Some candleholders and other cake decorations are made from sugar and albumen with an inserted metal wire. When these decorations are sold in a manner not implying they are a food or confectionery, they are not regarded as food within the meaning of the act.*
When small silver balls known as "silver dragees" are sold exclusively for decorating cakes and are used under conditions which preclude their consumption as confectionery, they are not considered to be in the category of a food or confectionery.
Silver colored almonds have been offered for cake decoration. In this regard, the *Center for Food Safety and Applied Nutrition* has stated:
"Although, the articles (silver colored almonds) may be intended for cake decoration, we do not agree that they are dragees; further, we see no compelling information that the articles are to be used for decorative purposes only and thus would not be eaten. There is no authority under the color additive regulations which permits silver to be used as a color. Neither is there a food additive regulation (or exemption) authorizing silver as a food coating."
REGULATORY ACTION GUIDANCE:
Recommend seizure or detain all shipments of silver coated (or silver colored) almonds, and any other silver coated food articles not confined to decorative use only.
Detentions should charge the article is violative within the meaning of Section 801(a)(3) of the act in that it appears to be adulterated, since it appears to bear silver, a color additive, which is unsafe within the meaning of Section 721(a) of the act.
NOTE: See Sec. 515.100 (CPG 7105.01) for a statement of policy on non-nutritive substances as ingredients of confectionery.
*The article was adulterated when introduced into, while in, and is adulterated while held for sale after shipment in interstate commerce within the meaning of said Act 21 U.S.C. 342(c) in that it contains a color additive, namely silver, which is unsafe within the meaning of 21 U.S.C. 376(a), since there is not in effect a regulation or exemption issued pursuant to 21 U.S.C. 376 permitting use of this color additive.*
*Material between asterisks is new or revised.*
Revised: 4/1/81, 6/27/88
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