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its latest draft guidance related to its onerous menu labeling rule.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
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 email@example.com.