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Shortcomings Remain in FDA's Menu-Labeling Rule

NACS files comments and meets with FDA to express some of the problems that businesses will face as they implement the final rule.
January 8, 2018
By Jon Taets

The U.S. Food and Drug Administration (FDA) has released its latest draft guidance related to its onerous menu labeling rule. This past Friday, NACS, along with SIGMA, filed formal comments with the FDA​ laying out shortcomings of the guidance.

The rule, originally released in 2014, was essentially written for national chain restaurants and compliance with it remains difficult for many others, including convenience retailers. Enforcement of the rule in May 2018 is quickly approaching, and the latest round of guidance has done very little to make compliance easier for the convenience industry. The comments filed Friday lay out these issues and urge the FDA to rewrite problematic parts of the rule.

FDA guidance helpfully clarified that promotional materials outside of stores typically would not need to disclose calorie counts. Unfortunately, the guidance did not explain whether promotional materials found inside the store might need to include calorie numbers. This lack of certainty will make compliance more difficult.

The guidance did not relieve any of its burdens from small businesses. The rule says that if a store is one of at least 20 with the same name (and with substantially the same menu offerings), then they are covered. NACS remains concerned that branded fuel outlets may be covered by the rule even when a business owns and operates fewer than 20 outlets. This is even though the rule is only supposed to cover chains of at least 20 locations.

Other concerns with the rule include its requirements that self-serve foods and foods on display require calorie labels where they are located rather than allowing that information to be posted on a single menu. And, the rule does not recognize the calorie variations that occur due to natural variations in foods and food preparation. NACS and SIGMA provided the FDA with a study last summer that shows that no matter what retailers do, roughly 93% of all prepared food would be in violation of this rule due to variations beyond the control of the retailer. The latest guidance fails to address this vital issue as well.

Central to each of these concerns are the penalties that might inevitably follow these difficult provisions of the rule. Some state laws create the risk of private and class action lawsuits to enforce the rule, as well as potential criminal penalties for government enforcement of the rule.

In addition to filing these formal comments last week, NACS, along with coalition allies, met with FDA Commissioner Dr. Scott Gottlieb and his staff to convey these arguments. We will continue to work with the FDA, as well as congressional leaders, to resolve these remaining issues, such as through passage of the Common Sense Nutrition Disclosure Act. That legislation (H.R. 722 in the House and S. 261 in the Senate) would resolve these concerns.

Jon Taets is the NACS director of government relations. He can be reached at jtaets@convenience.org