A recent study claims that the calorie counts which restaurants provide for their fare is “accurate overall,” although there is “substantial inaccuracy for some individual foods, with understated energy contents for those with lower energy contents.” Lorien E. Urban, et al., “Accuracy of Stated Energy Contents of Restaurant Foods,” Journal of the American Medical Association, July 20, 2011. Noting that restaurant foods “provide approximately 35% of the daily energy intake in US individuals,” researchers used a validated bomb calorimetry technique to test 269 food items, including 242 unique items, from 42 quick-serve and sit-down restaurants in Arkansas, Indiana and Massachusetts. Their findings apparently indicated that 19 percent of the 269 samples “contained measured energy contents of at least 100 kcal/portion more than the state energy contents,” an amount “that has been projected to cause 5 to 15 kg of weight gain per year if consumed daily.” The study also determined…
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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 Food and Drug Administration (FDA) has proposed two new information collections related to voluntary registration, recordkeeping and mandatory third-party disclosure under section 4205 of the Patient Protection and Affordable Care Act of 2010. Section 4205 requires chain restaurants with 20 or more locations, as well as operators of 20 or more vending machines, to disclose “certain nutritional information on certain food items offered for sale so that consumers can make more informed choices about the food they purchase.” In addition, it provides for restaurants or operators with fewer than 20 locations to biannually opt in to the federal requirements. The first proposed information collection pertains to FDA’s program for voluntary registration under section 4205. FDA anticipates that chains with 10 to 19 outlets “may choose to register, either because they are growing quickly, or because they are concerned about possible regulation.” According to FDA, “[t]he primary source of potential registrants will…
The Food and Drug Administration (FDA) has released draft and final guidance to assist restaurateurs and vending machine operators in implementing the labeling provisions set out in section 4205 of the Patient Protection and Affordable Care Act of 2010. The Act requires food retail establishments with 20 or more locations to post the calorie content for standard items on menus and menu boards; provide additional nutrition information in writing; and post calorie information for self-serve items and foods on display. The draft document offers proposed guidance on the execution of these standards, while the final explains the impact of the federal measure on state and local laws. According to an August 24, 2010, FDA press release, the agency “realizes that industry may need additional information and time to comply with the new provisions, and that the agency expects to refrain from enforcement action for a time period that will be provided…
The Food and Drug Administration (FDA) has issued a notice specifying the terms and conditions for voluntary compliance with section 4205 of the Affordable Care Act of 2010, which established nutritional labeling requirements for chain restaurants with more than 20 locations and vending machine operators with more than 20 machines. Other retailers not covered by section 4205 can elect to become subject to the federal law by registering biannually with FDA. Restaurants and similar establishments that voluntarily opt in “will no longer be subject to State or local nutritional labeling requirements unless those requirements are identical to Federal requirements,” according to the agency. Vending machine operators are already covered by state and local regulations identical to federal requirements, although Congress has “expressly provided” that they may still undertake voluntary registration. The agency will accept comments until October 21, 2010. See Federal Register, July 23, 2010.
In response to an Office of Management and Budget (OMB) request, the Business Roundtable and The Business Council have prepared a report with a list of laws and regulations that the nation’s business leaders reportedly believe “have a dampening effect on economic growth and job creation.” Among the business groups’ concerns are proposals that would affect how the food and beverage sectors conduct business. Titled “Policy Burdens Inhibiting Economic Growth,” the report cited Food and Drug Administration food labeling policies, proposals to increase beverage taxes, pending changes to food safety laws, proposed nutrition standards, and youth marketing initiatives as areas of particular concern. OMB Watch, an organization dedicated to “equitable regulatory and budgetary processes,” questioned the timing of the White House invitation, claiming that recent economic and environmental catastrophes were due to lax regulation and not “because government has been too zealous.” Acknowledging that OMB may have initiated the dialogue as…
The Food and Drug Administration (FDA) is seeking public comments on a new federal law that requires certain chain restaurants and retail food operations to post the calorie content of individual items on menus, menu boards and drive-through menu boards. Enacted March 23, 2010, section 4205 of the Affordable Care Act applies to food establishments with 20 or more locations, such as restaurants, coffee shops, delis, movie theaters, bakeries, and ice cream shops. Per-serving information related to the amount of calories, cholesterol, fiber, sodium, sugars, total and complex carbohydrates, total and saturated fat, and total protein must be available in writing on request. The law also compels vending machine operators with 20 or more machines to list calorie information “in close proximity to” each article of food or the selection button. The law instructs FDA to issue proposed regulations to carry out these provisions by March 23, 2011. The agency…
The California county that helped lead the national push for menu labeling has reportedly approved an ordinance (NS-300-820) that would prohibit restaurants from using “incentive items” to promote meals deemed high in calories, salt or fat. The Santa Clara County Board of Supervisors apparently voted 3-2 on April 27, 2010, to set nutritional standards for restaurant food that comes with such giveaways as toys, games, trading cards, admission tickets, or any other consumer product, “whether physical or digital.” The measure declares that restaurants cannot link incentives to (i) meals that exceed 485 calories or 600 milligrams (mg) sodium; (ii) single food items that exceed 200 calories or 480 mg sodium; or (iii) beverages that contain caffeine, added nonnutritive sweeteners or more than 120 calories, or derive more than 35 percent of their total calories from fat or 10 percent from added caloric sweeteners. In addition, meals or food items offering…
The Public Health Advocacy Institute (PHAI) recently posted a case study that discusses the process which led to the adoption of a restaurant calorie disclosure law in New York City. Funded by the Robert Wood Johnson Foundation’s Public Health Practice & Policy Solutions, the case study focuses on threats of litigation that arose throughout the law’s development and adoption, noting that public health officials considered this possibility early in the process and ultimately prevailed by adopting a broad-based law that survived legal challenge. The article relies on media coverage, legislative materials, scholarly articles, legal filings, and judicial opinions to recommend how other local authorities can prepare to support similar initiatives. While “interviews with opponents were not conducted,” the author did consult in-depth with the law’s proponents in preparing the analysis. PHAI is headed by anti-tobacco attorney and law professor Richard Daynard. It has conducted a number of conferences for lawyers,…
A federal court in Kansas has dismissed a putative class action filed against Applebee’s International, Inc. and Weight Watchers International, Inc., finding that the claims raised under the Racketeer Influenced and Corrupt Organizations Act (RICO) were not sufficiently alleged. Shepard v. Applebee’s Int’l, Inc., No. 08-2416 (D. Kan., decided April 7, 2010). Details about the litigation, filed by a different named plaintiff, appear in issue 274 of this Update. The complaint alleged that the companies misrepresent the fat and calorie information in the dishes on the restaurateur’s “healthy” Weight Watchers® menu. The court had previously dismissed the plaintiffs’ state law claims as preempted by the Nutrition Labeling and Education Act, and sustained in part a motion to dismiss their RICO claims. Thereafter, defendants filed a motion for judgment on the pleadings as to the remaining RICO claim, arguing that the plaintiffs failed to allege “racketeering activity” because they did not…
