Final menu labeling guidance falls short of retailers’ hopes, clarifies gray areas

The agency said it would delay until May 2017 enforcement of the menu labeling final rule, which requires chain restaurants, supermarkets and food service providers with 20 or more locations to post calorie information for standard food items. Previously, FDA had set December 2016 as the compliance date for the rule, which was mandate by the Affordable Care Act six years ago. 

The final guidance​ also differs from the draft by providing additional examples and new or revised frequently asked questions and answers about alcoholic beverages, catered events, mobile vendors and some record keeping requirements, the agency said.

Trade groups demand more flexibility​

However, trade groups representing supermarkets and convenience stores grumble that the final guidance is not substantially different from the controversial draft guidance other than to extend the compliance date from one year from when the guidance is published in the Federal Register – which is slated for later this month.

They argue that the final guidance and rule are overly burdensome and confusing for retailers, which they say are far more structurally complex than the chain restaurants for which the regulation originally was intended.

“The guidance is largely a reprint of the draft guidance the agency released in September 2015 and did not incorporate the critical flexibility requested by the supermarket industry to make chain restaurant menu labeling regulations more practical in a grocery store setting for key areas,” ​FMI President and CEO Leslie Sarasin said in a written statement.

Specifically, she explained, supermarkets need more flexibility around labeling locally produced foods that are sold at only one or two locations as well as their ability to use one sign or menu board in a prepared foods area or next to a salad bar.

The National Association for Convenience & Fuel Retailing agrees that the final guidance does little to nothing to address concerns it raised about the draft guidance.

“FDA has done a disservice to convenience stores by willingly ignoring our industry’s interest in providing calorie information to consumers in a way that is actually helpful,”​ Lyle Beckwith, NACS senior vice president of government relations at NACS, said in a release.

“Rather than take into account the practicality of our industry’s ability to comply with the law, the FDA has moved ahead with menu-labeling requirements designed for chain restaurants and not convenience store foodservice programs,”​ Beckwith added.

Groups promote “common sense”​ legislation​

In light of the groups’ perceived shortcomings of the guidance, they say they will continue to pursue legislation passed in the House in February​ and pending in the Senate. 

The Common Sense Nutrition Disclosure Act​ (H.R. 2017/S.2217) would give retailers wiggle room by tightening the definition of “standard menu items,”​ which the regulation says must be labeled, as foods that are uniformly prepared at 20 or more locations and not foods sold at only one or two locations. 

The bill also would allow supermarkets to use a menu or menu board in prepared foods areas, rather than requiring every product be labeled.

While the proposed legislation passed the House with an overwhelming vote of 266-144 of support, the companion bill in the Senate appears to have stalled – failing to move since it was originally introduced  and referred to the Committee on Health, Education, Labor and Pensions in late October 2015.

The bi-partisan legislation did, however, pick up four more Republican sponsors in April, including Sens. John Boozman, R-Ariz., John McCain, R-Ariz., Tim Scott, R-SC, and Rand Paul, R-Ky.