(a) The label of a dog or cat food shall bear a statement of caloric content, provided:
  (1) the statement shall be separate and distinct from the "Guaranteed Analysis" and shall appear under the heading "Caloric Content";
  (2) the statement shall be measured in terms of metabolizable energy (ME) on as fed basis and must be expressed as "kilocalories per kilogram" ("kcal/kg") of product, and as kilocalories per familiar household measure (e.g., cans, cups); or unit of product (e.g. treats or pieces); and
  (3) an affidavit shall accompany the request for label review substantiating that the caloric content was determined:
    (A) by calculation using the following "Modified Atwater" formula: ME (kcal/kg) = 10 {(3.5 x CP) + (8.5 x CF) + (3.5 x NFE)} where CP = % crude protein as fed, CF = % crude fat as fed, NFE = % nitrogen-free extract (carbohydrate) as fed and the percentages of CP and CF are the averages values of these components in the product as determined by sound scientific methods, such as, but not limited to scientifically accurate calculations made from the formula of the product or upon chemical analysis of the product. The NFE is calculated as the difference between 100 and the sum of CP, CF, and the percentages of crude fiber, moisture and ash (determined in the same manner as CP and CF); or
    (B) in accordance with a testing procedure established by the Association of American Feed Control Officials.
  (4) An affidavit shall be provided upon request of the Service, substantiating that the calorie content was determined by:
    (A) regulation PF9 (a)(3)A in which case the summary data used in the calculation shall be included in the affidavit; or
    (B) regulation PF(a)(3)B in which case the summary data used in the determination of calorie content shall accompany the affidavit.
  (5) the calorie content statement shall appear as one of the following:
    (A) the heading "Calorie Content" on the label or other labeling shall be followed parenthetically by the word "calculated" when the calorie content is determined in accordance with Regulation PF9(a)(3)A; or
    (B) the heading "Calorie Content" on the label or other labeling shall be followed parenthetically by the word "fed" when the calorie content is determined in accordance with Regulation PF9(a)(3)B.
(b) Comparative claims shall not be false, misleading, or given undue emphasis and shall be based on the same methodology for the products compared.

Source Note: The provisions of this §63.9 adopted to be effective February 28, 1995, 20 TexReg 1018; amended to be effective February 21, 1997, 22 TexReg 1628; amended to be effective February 1, 2017, 42 TexReg 308