Food retailers, foodservice debate menu labeling rules

by Erica Shaffer
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Couple reading a menu
Grocery and retail stores want an exemption from FDA menu labeling rules; restaurant operators want a level playing field.

WASHINGTON – Food retailers are having a tough time complying with the Food and Drug Administration’s menu labeling rule, industry stakeholders said in testimony before the House Energy and Commerce Committee’s Health Subcommittee.

The groups testified in support of and against the Common Sense Nutrition Disclosure Act of 2015 (HR 2017), which addresses compliance challenges grocery stores face with the FDA menu labeling rule. Under the Common Sense Nutrition Disclosure Act, businesses that generate less than half of their overall revenues from the sale of prepared foods would be exempt from FDA menu labeling regulations.

Israel O’Quinn, director of strategic initiatives for K-VA-T Food Stores, Inc., testified on behalf of Food Marketing Institute (FMI). He said the industry's concern with menu labeling is that the regulation stifles creativity and removes regional flavors popular with their customers. He added that initiatives already taken by retailers, such as Facts Up Front, NuVal or electronic kiosks, would not be compliant under FDA regulations.

“Some of our stores have considered placing a sign, book or electronic kiosk listing calorie counts for all items above or at the end of the salad bar instead of putting a label on every ladle and tray, which are constantly moving and getting switched out,” O’Quinn said. “Based on what FMI has been told by FDA, this would not be considered compliant under FDA’s rules. We’ve also considered using scale-labels from our deli-area for grab-and-go items like sandwiches made from the deli early in the day, but with a FDA-mandated font size, the font-size would not be compliant without having to completely replace all of our scales and labels. To put it bluntly, this is going to be a very expensive endeavor.”

The FDA published its final menu labeling rule in November 2014. The rule applies to restaurants and similar retail food establishments that are part of a chain of 20 or more locations doing business under the same name offering substantially offering the same food items. Venues covered under the rule are required to list calorie information for standard menu items on menus and menu boards accompanied by a statement about suggested daily caloric intake.

Other nutrient information, including total calories, calories from fat, total fat, saturated fat, trans fat, cholesterol, sodium, total carbohydrates, fiber, sugars and protein must be made available in writing on request. Businesses subject to the rule also are required to post a statement on menus and menu boards about the availability of the additional written nutrition information.

Establishments covered by FDA menu labeling regulations.

In a letter to the committee, FMI President Leslie Sarasin said the lack of time, guidance and flexibility by the FDA led industry to seek a legislative remedy to address compliance challenges.

“To be clear, grocery stores want to provide customers with nutrition information and have done so for a very long time, at least since the Nutrition Labeling and Education Act was enacted in 1992,” Sarasin wrote. “This desire to respond to our customers extends to the instances in which there are menus or menu boards, and FMI will continue its efforts to work with FDA to identify alternatives for this provision of additional menu nutrition information in the context of a grocery store environment.”

Karen Raskopf, chief communications officer for Dunkin Brands, Inc., testified on behalf of the National Restaurant Association presenting an opposing point of view. Raskopf said grocery and convenience stores should be held to the same requirements as restaurants. She said that while grocery and convenience stores operate differently than restaurants, there is no difference when comes to the actual serving of restaurant-type food.

“When department stores, such as Target and Walmart, started selling grocery/convenience store food, they were not exempt from including the same nutrition information required for grocery/convenience stores — even though the department stores had additional regulations because of their differing business operations,” Raskopf said. “We see no difference in the situation we are now faced with for restaurant type foods. Congress decided that restaurant type foods should bear calorie labeling, regardless of where they are sold. In the interest of creating a level playing field for these types of foods, we emphatically agree.”

Also testifying against the act was Margo Wootan, director of nutrition policy at the Center for Science in the Public Interest. She said “The restaurant industry and public health groups agree that all chain establishments that serve ready-to-eat prepared foods should post calories, including supermarkets, convenience stores, and movie theaters. There should be a level playing field and the law should be fair to all chain establishments that sell ready-to-eat prepared foods.

“Importantly, it is what consumers want and need in order to manage their calorie intake and weight,” she added.

All businesses covered by the rule must be in compliance by Dec. 1.

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