Lingering rulemaking mandated by the Obama administration’s Affordable Care Act has now become effective under the watch of a Trump administration actively trying to kill remaining vestiges of the law. Specifically, the Food and Drug Administration has chosen not to block or further delay the May 7 compliance date for requirements that restaurants and others post calorie and nutrition information on menus and menu boards.
Restaurants with 20 or more locations will need to create new nutritional labels and keep additional data onsite and available upon request. Convenience stores, coffeehouses, and movie theaters that sell ready-to-eat foods are also covered by the rule. The rule similarly includes self-serve beverages, such as soda fountains and coffee.
On Monday, FDA Commissioner Scott Gottlieb praised “the public health benefits from enactment of menu labeling.”
“We know that many Americans both want and use nutritional information on food package labels to make decisions about what to eat to help improve their health,” he said in a statement. “But consumers can’t always access similar information at their favorite restaurant chains. Or there is little consistency in the information that they receive. Yet more Americans are eating meals away from home.”
A “driving factor” for enacting the rule, he said, is that “Americans currently eat and drink about one-third of their calories away from home.” At the same time, rates of child and adult obesity in the United States are at historic highs.
The rules mandated by Obamacare provided “a uniform standard to replace the patchwork of menu labeling laws that were appearing around the country,” Gottlieb says. The framework ensures that “consumers will have access to consistent, science-based information.”
Starting on May 7, this information will be required throughout the country as the FDA’s menu labeling rule is implemented.
Gottlieb clarified that the rule covers “establishments that are chains with 20 or more locations doing business under the same name that offer substantially the same menu items consisting of restaurant-type foods.” Consumers can also ask these establishments for additional nutritional information (provided, for example, as a booklet, handout or in electronic form) that includes the amount of sodium, fiber, sugars, total carbohydrates, saturated fat and protein for any standard menu item.
“We’re also committed to helping the industry in fulfilling this requirement in a way that is both effective and not overly burdensome,” he added. “In order for these opportunities to be maximally beneficial to consumers, the new provisions also need to be minimally burdensome for businesses to effectively comply.”
Gottlieb said his agency has taken “new steps to reduce the costs that the new provisions will impose on businesses.”
“The FDA completed a last critical step before the menu labeling rule implementation date by finalizing guidance that provides additional clarity and details requested by the food industry,” he said. “While the overall framework in our guidance remains largely unchanged, we’ve made some meaningful updates to address thoughtful and important input from the public and industry stakeholders.”
The changes in the final guidance include expanded and new examples of the many ways to comply with the menu labeling requirements. The guidance includes pictures of the flexible approach that covered establishments can take, under FDA’s regulation, in choosing how to display calories on menus and menu boards.
Overall, the guidance clarifies that posters, billboards, coupon mailings and other marketing materials are generally not considered menus that would require calorie counts under the new regulation.
The guidance also suggests “flexible options” for implementing the regulation, such as graphical depictions on how to illustrate ways to post calories for multiple items on a single sign, such as those that might be featured at a self-service buffet or beverage stations.
“In response to concerns from pizza chain owners who shared with us that they believed it would be difficult to develop menu boards reflecting the thousands of topping combinations people might want on their pizza, we provided several graphic illustrations to provide options for how to accomplish this,” Gottlieb said. “Our goal is to implement these Congressional provisions in the most efficient, effective manner that both benefits consumers without placing unnecessary barriers on industry.”
His agency plans to take “a flexible approach to implementing the new provisions,” he added. For the first year, it will focus its efforts on helping covered establishments come into compliance with the law and educational outreach. “The FDA will allow covered entities a reasonable opportunity to make adjustments to bring themselves into compliance,” Gottlieb said, adding that enforcement is unlikely to be an issue during the first year.
Despite those assurances, many of those covered by the rule are continuing efforts to ease their compliance burden.
The National Association of Convenience Stores says it is continuing to work with FDA and congressional allies “to get changes to the rule which would make compliance less burdensome on convenience retailers.”
“Legislation that would have amended the rule passed the House earlier this year with a bipartisan majority,” it said in a statement, adding that the Common-Sense Nutrition Disclosure Act would make compliance more sensible in different retail channels.
In February, Representatives Cathy McMorris Rodgers (R-Wash.) and Tony Cárdenas (D-Calif.) introduced the Common Sense Nutrition Disclosure Act of 2017 (H.R. 772) in the House; Senators Roy Blunt (R-Mo.) and Angus King (I-Maine) introduced a companion bill (S. 261) in the Senate.
The legislation was designed to give restaurants, grocers, and convenience stores “the freedom to provide nutrition information in a way consistent with how they operate and how their customers actually place orders—including by phone, online, or through mobile apps.”
Public outreach materials accompanying the bill used the claim that a sandwich shop offering 30 toppings on a variety of breads could have more than 30 million possible combinations to worry about under the label rule.
The bill passed the House with a vote of 266-157 earlier this year, but has failed to gain similar traction in the Senate.
The National Grocers Association, the trade association representing the independent supermarket industry, has also weighed in with a statement from Greg Ferrara, executive vice president of advocacy, public relations, and member services.
“Independent supermarket operators are committed to providing their customers with transparency on the food products they sell and have been working hard to bring their operations in compliance with the FDA’s menu labeling regulations, but uncertainty with how to implement the regulation still exists,” he wrote. “A one-size-fits-all regulation that was originally designed for chain restaurants is unworkable and needs Congressional action to address the problems and burdens this law will place on independent grocers. NGA and its members look forward to working with stakeholders to find a commonsense solution.”