National Menu and Vending Machine Labeling Laws Proposed

The Food and Drug Administration (FDA) has issued its proposed menu-labeling rule for chain restaurants and calorie-labeling rule for food in vending machines. According to Department of Health and Human Services Secretary Kathleen Sebelius, “These proposals will ensure that consumers have more information when they make their own food choices. Giving consumers clear nutritional information makes it easier for them to choose healthier options that can help fight obesity and make us all healthier.” Comments on the proposals, which were mandated under the Affordable Care Act, must be submitted by June 6, 2011, for the menu-labeling rule and by July 5 for the vending machine rule.

Excluded from the menu-labeling rule are “[m]ovie theaters, airplanes,
bowling alleys, and other establishments whose primary purpose is not to
sell food,” and FDA is requesting comments “on whether additional types
of food establishments should or should not be covered by the new rule.”
The proposal would also not apply to restaurants that do not offer standardized
menu items and are not part of a chain with 20 or more locations
doing business under the same name. FDA has tentatively concluded that
the requirements would not apply to the alcoholic beverages served in
restaurants.

The nutrition information that would be required under the menu-labeling
rule includes total calories; calories from fat; grams of total fat, saturated
fat and trans fat; milligrams of cholesterol and sodium; and grams of total
carbohydrates, sugars, dietary fiber, and protein. The restaurant or other
food facility would have the option of choosing how to make the nutrition
information available, including a counter card, sign, poster, handout, loose
leaf binder, booklet, electronic device, or on a menu. Calories for self-serve
foods, such as those in buffet lines, would also have to be disclosed. The
proposal further establishes the methods for determining nutrient content
and provides that failure to comply “will render food misbranded” under the
Food, Drug, and Cosmetic Act. FDA also proposes that restaurant menus and menu boards include the statement, “A 2,000 calorie diet is used as the basis for general nutrition advice; however, individual calorie needs may vary.”

The vending machine proposal would apply to vending machine operators
who operate more than 20 vending machines that sell articles of food. It
would not apply to machines that dispense food as part of a game, such as
those allowing a variety of items, such as toys, coins or wrapped candies to
be accessed by use of a large maneuverable claw arm. Also excluded are
machines lacking a selection button and dispensing foods in bulk. FDA is
“interested in comments demonstrating any unintended adverse effect
resulting from the exclusion of vending machines without selection buttons
from the calorie labeling requirements.” Under the proposal, covered vending
machine operators would be required to register with FDA every other year
and would have to “provide a sign in close proximity to the article of food
or the selection button that includes a clear and conspicuous statement
disclosing the number of calories contained in the article.”

This calorie disclosure would not be required “[i]f the Nutrition Facts Panel of an article of food sold from a vending machine may be examined by a prospective purchaser before purchasing the article.” The panel “must be in a size that permits the prospective purchasers to easily read the nutrition information while the food is in the vending machine.” Vending machine operators may rely on the calorie information provided by the companies making the packaged foods they sell in their machines and will be given one year to comply once the rule goes into effect. See FDA Press Release, April 1, 2011.

Reactions to the proposal ranged from mixed praise on the part of the Center for Science in the Public Interest (CSPI) to skepticism by those questioning why movie theaters and alcoholic beverages served in restaurants are excluded. The president and chief executive of the National Restaurant Association reportedly indicated that the organization supports the menu-labeling proposal, so that “the same type of nutrition information [will be provided] to consumers in any part of the country.” According to a news source, Representative Rosa DeLauro (D Conn.), who authored the bill imposing the disclosure requirements, said that she would work to strengthen the rules so they apply to movie theaters and alcoholic beverages. Nutrition professor Marion Nestle was quoted as saying, “For people who are interested or curious, this will be staggering information. And they’ll change their behavior. For others, it’s not.”

FDA estimates that one-third of all calories are consumed outside the home, and the U.S. Department of Agriculture (USDA) has determined that Americans spend 42 percent of their food budgets on meals and snacks outside the home. USDA has also found that Americans consume more calories, fat and cholesterol when they eat away from home. The debate over whether knowing how many calories are in the foods offered in many food facilities will affect consumer behavior reportedly continues. In those cities, counties and states that have adopted menu-labeling laws, restaurant chains have apparently reformulated menu items or added lower-calorie choices. See CSPI Press Release, The Washington Post, and The New York Times, April 1, 2011; The Wall Street Journal, April 2, 2011; Slate.com, April 5, 2011.