University of St. Thomas Law Journal

What’s the Tea?

Matthew Siegler*

In 1662, King Charles II married Princess Catherine of Braganza.1 Within Princess Catherine’s dowry was the Portuguese territory of ‘Bom Bahia’ (today’s Bombay), but the most proliferating item may have been mere tea.2 Tea had been within the United Kingdom’s border prior to 1662, but Princess Catherine’s is charged within popularizing tea among British nobility, which ultimately lead to tea becoming ubiquitous in the United Kingdom.3

Centuries later, in 2018, the Food and Drug Administration (“FDA”) launched its Comprehensive Multi-Year Nutrition Innovation Strategy.4 This strategy sought to “promote public health through improved nutrition, encourage industry innovation to create healthy products that consumers seek, and address ways for consumers to identify these products.”5 This strategy included FDA’s efforts to modernize food standard identities.6 In response the Tea Association of the U.S.A. Inc. (“Tea Association”) sent a comment to the FDA regarding these standards of identity.7

The FDA began promulgating regulations surrounding standards of identity (“SOI”) in 1939, following the passing of the Federal Food, Drug, and Cosmetic Act of 1938.8 SOIs generally describe what certain foods must contain, what is option, and occasionally proportions or amounts of specific components of a food item.9 SOIs may also describe production or formulation methods of certain foods.10 For example, the FDA recently revoked the SOI for frozen cherry pie in response to a petition submitted by the American Bakers Association.11 The original SOI, promulgated as 21 C.F.R. 28.1, defined frozen cherry pie as a food “prepared by incorporating in a filling contained in a pastry shell mature, pitted, stemmed cherries that are fresh, frozen, and/or canned. The top of the pie may be open or it may be wholly or partly covered with pastry or other suitable topping.”12 There are other provisions of this rule designating certain optional ingredients, pie diameters, and even labeling requirements.13 Standards of identity, as noted in the Federal Register under which this standard was promulgated, allowed better control of the ingredients used in food products, yet adverse comments cited difficulty determining certain ingredient contents or deviation from tradition.14 The original regulation, 21 C.F.R. § 28.1, was revoked in 2024 because the FDA no longer found these standards necessary “to promote honest and fair dealing in the interest of consumers.”15

The FDA, alongside the Food Safety and Inspection Service, proposed rules in 2005 regarding the general principles used in considering a petition to establish, revise, or revoke an SOI.16 In 2020, however, the FDA reopened the comment period of this proposed rule, as part of its Nutrition Innovation Strategy.17 Needless to say, there is ample uncertainty within the FDA regarding policies dealing with standards of identity. The reopening of the comment period was done in part with the intent to consider comments relating to the public meeting on horizontal approaches to food standards of identity modernization, of which the Tea Association was a commenting party.18

The crux of the Tea Association’s letter was that “a formal [SOI] be established to ensure that only tea from the Camellia sinensis plant be considered ‘tea.’”19 As noted by the Tea Association, teas include green, black, oolong, white, and dark.20 Notably, not included in this list is herbal tea, termed “botanicals” or “tisanes,” which are not made from the Camellia sinensis plant, and therefore not actually tea.21 This may seem like a technicality, but the Tea Association’s position is that Camellia sinensis has well documented associations to a plethora of health benefits, yet botanicals or tisanes may not have the same health benefits.22 For example, the National Institute of Health noted in a 2022 study  that “the potential benefits of tea plants and their derived bioactive components as anti-obesity, anti-diabetic, and anti-cardiovascular agents are clearly shown[.]”23 While this study examined green tea specifically, as have others,24 the different types of teas, like green tea or oolong tea, vary only due to their components and fermentation process.25

Noting these documented health benefits, the Tea Association asserts that grouping botanicals and tisanes, which are infusions “of leaves, roots, bark, seeds or flowers of other plants[,]” may mislead consumers.26 The recommendation of an SOI for “tea” would then require teas not containing Camellia sinensis to be labeled by botanical, such as “Ginger Herbal Tea of Chamomile Herbal Tea.”27 The Tea Association claims an SOI incentivizes producers of these botanical infusions to include Camellia sinensis in their products, permitting the “tea” classification.28

The attempt to avoid consumer confusion must also be considered under the guise of 21 C.F.R. 101.9(j)(4), which exempts foods, like teas, from disclosure of nutrients and food components, as otherwise required.29 These types of foods, which “contain insignificant amounts of all of the nutrients and food components required to be included in the declaration of nutrition information[,]” must not make nutrition claims or bear other nutrition information on the label or in advertising.30 While the dietary nutrients in tea are negligible, teas occasionally make general well-being claims, which are regulated by the FDA under the Dietary Supplement Health and Education Act of 1994.31

Ultimately, the Tea Association’s recommendation, made in 2019, has not been acted upon by the FDA, and botanicals and tisanes continue to be labeled as “tea” without differentiation from those which include Camellia sinensis.32 The question remains for the Tea Association: How will any proposed rule governing the grant, amendment, or revocation of standards of identity inform the FDA in any future consideration of a standard of identity for tea?

* Matthew Siegler, J.D. Candidate at the University of St. Thomas School of Law Class of 2026 (Associate Editor).

  1. Tea Time!, Peabody Hist. Soc’y, https://peabodyhistorical.org/2024/05/tea-time/#:~:text=When%20English%20King%20Charles%20II,luxury%20through%20the%20early%201700s [https://perma.cc/LE5S-CE98] (last visited Mar. 13, 2025). ↩︎
  2. Charles II, Catherine of Braganza and Bombay, Royal Collection Trust, https://www.rct.uk/collection/exhibitions/eastern-encounters/the-queens-gallery-buckingham-palace/charles-ii-catherine-of-braganza-and-bombay [perma.cc/S9PQ-VCCW] (last visited Mar. 13, 2025); Peabody hist. soc’y, supra note 2. ↩︎
  3. How Tea Conquered Britain, BBC, https://www.bbc.co.uk/bitesize/articles/zm2txyc [https://perma.cc/L8RT-SW7U] (last visited Mar. 13, 2025). ↩︎
  4. The Food and Drug Administration’s Comprehensive, Multi-Year Nutrition Innovation Strategy; Extension of the Comment Period, 83 Fed. Reg. 42513 (Aug. 22, 2018). ↩︎
  5. Horizontal Approaches to Food Standards of Identity Modernization; Public Meeting; Request for Comments, 84 Fed. Reg. 45498 (Aug. 29, 2019). ↩︎
  6. Letter from Peter Goggi, President, Tea Association of the U.S.A., Inc., to Lowell J. Schiller, Principal Assoc. Comm’r for Pol’y of the FDA (Oct. 3, 2019). ↩︎
  7. Id. ↩︎
  8. Claudine Kavanaugh, FDA in Brief: FDA Reopens Comment Period Related to General Principles for Food Standards of Identity Modernization, FDA Newsroom (Feb. 20, 2020), https://www.fda.gov/news-events/fda-brief/fda-brief-fda-reopens-comment-period-related-general-principles-food-standards-identity#:~:text=Standards%20of%20identity%20describe%20in,all%20have%20standards%20of%20identity [https://perma.cc/9JTM-PC8C]. ↩︎
  9. Standards of Identity for Food, FDA, https://www.fda.gov/food/nutrition-food-labeling-and-critical-foods/standards-identity-food [https://perma.cc/4WXM-XD7W] (last visited Mar. 13, 2025). ↩︎
  10. Id. ↩︎
  11. Frozen Cherry Pie; Revocation of a Standard of Identity and a Standard of Quality, 89 Fed. Reg. 18784 (Mar. 15, 2024) (to be codified at 21 C.F.R. pt. 152). ↩︎
  12. Frozen Cherry Pie; Identity; Label Statement of Optional Ingredients, 36 Fed. Reg. 3364 (proposed Feb. 23, 1971) (to be codified at 21 C.F.R. pt. 28.1). ↩︎
  13. Id. ↩︎
  14. Id. ↩︎
  15. Frozen Cherry Pie; Revocation of a Standard of Identity and a Standard of Quality, 89 Fed. Reg. 18784 (Mar. 15, 2024). ↩︎
  16. Food Standards; General Principles and Food Standards Modernization, 70 Fed. Reg. 29214 (proposed May 20, 2005) (to be codified at 9 C.F.R. pt. 410 and 21 C.F.R. pt. 130). ↩︎
  17. Kavanaugh, supra note 8. ↩︎
  18. Kavanaugh, supra note 8; Letter from Peter Goggi, supra note 6. ↩︎
  19. Letter from Peter Goggi, supra note 6. ↩︎
  20. Letter from Peter Goggi, supra note 6. ↩︎
  21. Letter from Peter Goggi, supra note 6. ↩︎
  22. Letter from Peter Goggi, supra note 6. ↩︎
  23. Brimson et al., Tea Plant (Camellia Sinensis): A Current Update on Use in Diabetes, Obesity, and Cardiovascular Disease, Nutrients, Dec. 21, 2022, at 2. ↩︎
  24. Aboulwafa et al., A Comprehensive Insight on the Health Benefits and Phytoconstituents of Camellia Sinensis and Recent Approaches for Its Quality Control, Antioxidants, Oct. 6, 2019, at 1. ↩︎
  25. Jiang et al., Analytical Strategy Couples to Chemometrics to Differentiate Camellia Sinensis Tea Types Based on Phenolic Composition, Alkaloids, and Amino Acids, J. Food Sci., Aug. 27, 2020, at 3253. ↩︎
  26. Letter from Peter Goggi, supra note 6. ↩︎
  27. Letter from Peter Goggi, supra note 6. ↩︎
  28. Letter from Peter Goggi, supra note 6. ↩︎
  29. FDA, A Food Labeling Guide: Guidance for Industry 64 (Jan. 2013).   ↩︎
  30. 21 C.F.R. § 101.9(j)(4) (2016). ↩︎
  31. Label Claims for Conventional Foods and Dietary Supplements, FDA(Mar. 28, 2024), https://www.fda.gov/food/nutrition-food-labeling-and-critical-foods/label-claims-conventional-foods-and-dietary-supplements#:~:text=The%20Nutrition%20Labeling%20and%20Education,risk%20of%20osteoporosis%22)%2C%20provided [https://perma.cc/9MHT-XHHT] (last visited Mar. 13, 2025). ↩︎
  32. See 21 C.F.R § 165 (governing beverages, which includes only bottled water under § 165.110). No other SOI (§§ 130–69) is analogous or related to any tea ingredient or tea product. Id. ↩︎

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