In an effort to increase egg supplies ahead of the Easter holiday, the National Chicken Council has filed a petition with the Food and Drug Administration seeking regulatory changes to allow “surplus” hatchery eggs to be permitted in the food supply. The United Egg Producers are opposed to the petition. 

Specifically, NCC asked FDA Thursday to exercise its enforcement discretion "to allow surplus broiler eggs to be sent for breaking without needing to meet the refrigeration requirement" in the 2009 Shell Egg Rule.

Egg price spikes and supply disruptions "are putting tremendous strain on the shell and egg products industries, and the impact has already begun to trickle down and impose hardships on restaurants, food manufacturers and consumers,” NCC said in a news release.

Overall U.S. egg supplies are down 5% as nearly 58 million birds (including turkeys) have been depopulated due to the current bird flu outbreak, with egg layers impacted the most. The national average price for a dozen eggs hit $4.25 in December, up from $1.79 a year earlier, according to the Bureau of Labor Statistics. Egg prices are expected to soften in 2023 but still remain well above previous levels.

NCC said that "fluctuating market conditions" sometimes cause broiler hatcheries to "have more eggs on hand than what they want to hatch."

"Based on industry data, almost 3% of all broiler hatching eggs are either not needed for hatching or are unfit for hatching and subsequently culled," the petition says. "As a result, almost 380 million eggs are not placed for hatching each year."

Before new FDA rules issued in 2009, broiler producers could sell those surplus eggs to processors, or “breakers,” to be used in egg products.

In 2009, FDA required that all shell eggs "be refrigerated at or below 45°F beginning 36 hours after the time of lay," the petition says. "Although the proposed rule did not mention surplus broiler eggs, the final rule expanded the scope of the requirement to include surplus broiler eggs, even if destined solely for egg breaking operations. 

"Broiler companies therefore are covered by the rule, which means that they must hold and transport eggs at or below 45°F beginning 36 hours after the time of lay if any of the eggs are to be sold into the egg breaking market."

But after receiving eggs from breeding farms, broiler hatcheries store them at 65°F before they placing them in incubators for hatching. NCC said in its release that after the 2009 rule went into effect, "broiler producers stopped selling surplus hatching eggs to egg breakers and instead are forced to render or throw these eggs away, often at an additional cost." The petition says the change costs the broiler industry more than $27 million each year.

NCC estimates in the petition that from 2009 through 2022, almost 5 billion surplus hatching eggs would have gone to egg breaking operations had the Shell Egg Rule not been in place.

 Ashley Peterson, NCC senior vice president of scientific and regulatory affairs, said in an email to Agri-Pulse that FDA does not have to go through rulemaking in order to provide enforcement discretion. “They could make the decision relatively quickly but likely they will have some requirements on labeling of eggs moving to breakers to ensure they do not end up as table eggs,” she said.

Oscar Garrison, UEP senior vice president of food safety regulatory affairs, opposes the petition because the broiler industry request does not comply with the rule which requires eggs be refrigerated within 36 hours of being laid.

"“If broiler-breeders refrigerate their eggs to ensure a safe food supply, the eggs can and should be sold to egg-breaking plants for further processing. FDA has received virtually identical petitions in the past and has never granted them. UEP urges FDA to reject this petition in the interest of food safety,” Garrison explained.

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NCC said pasteurized surplus broiler eggs "present a very different risk profile" than raw table eggs. “In fact, under FDA’s rule, eggs that fail to meet certain requirements can be sent to egg breakers to be pasteurized, which is exactly what NCC is asking for now. NCC objected to FDA’s rule when it was implemented on this and related grounds.”

"Because egg products are pasteurized, they are ensured a high level of food safety," NCC said in its release. "A 2020 joint FDA/USDA risk assessment confirmed these products present extremely low public risk due to the 'extremely high pasteurization efficiency' of the egg breaking pasteurization process."

“With the recent risk assessment affirming their safety, we request FDA exercise its enforcement discretion to allow surplus broiler eggs to be sent for breaking without needing to meet the current refrigeration requirements,” the petition urged.

“Already faced with record egg prices, consumers might be hit even harder in their wallets as we head into the Easter season unless FDA provides us with a pathway to put these eggs to good use,” Peterson said.

"Liquid, frozen and dried egg products are widely used by food manufacturers and the foodservice industry and as ingredients in items such as salad dressings, bread, cake mix, pasta, pancake mix, mayonnaise, ice cream, pie crusts, sauces and many other everyday food products," NCC said.

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