Friday, December 19, 2014

Final Rule Part II Vending Machines

In my last post, I detailed some information related to menu labeling for restaurants and businesses that sell foods for immediate consumption (businesses like movie theatres and bowling alleys).

The FDA published a separate Final Rule to explain the requirements of nutrition labeling for the vending site. There are similarities to the restaurant regulations, but some differences exist.

The nutrition information to be disclosed at the point of sale (i.e., available before the snack is selected from the machine) is calorie content for the entire package.  The information can be placed on the machine, in the machine or on a sign near the machine. It can even be displayed electronically, as long as it is seen before money is spent.  Just like in menu labeling, no state or local law can preempt the federal law for covered vending operators  (i.e., those who own 20 or more vending machines), but the vending rule specifically says that vending operators MAY PROVIDE ADDITIONAL NUTRITIONAL INFO.  To be clear, the state cannot require them to do so, but they are allowed to do so. To put this in perspective, recall the last blog post. In Philadelphia, certain restaurants are required to post calorie and sodium information on the menu, but if those restaurants are covered by the federal law, they can no longer be made to post anything other than calories.  If a vending owner covered by the federal law himself chose to disclose more than calories, for example added sugar grams, for the contents of his machine, he or she could do so.  I don't know, maybe it isn't different than the restaurant rule.  I don't recall reading anything in the restaurant rule about voluntary disclosure, but I am pretty certain if Apple Bees, for example, decided to post sodium content on the menu in their restaurants, they could legally do so.

The Final Rule for vending does not require the qualifying statement regarding 2000 calories a day (but this is information the rule calls 'additional information' that can be added by the vendor as long as any info or statements are accurate.  Vending companies have 2 years, instead of 1, to post their information.

I have talked about package labeling and the need for revisions in the past.  For the most part (90%), vending machine snacks have nutrition information on them (unlike restaurant foods or movie popcorn); the problem is that the customer cannot see the information when the snack is in the machine.  The Final Rule for vending states that a vendor is exempt or a snack machine is exempt, if the customer can easily see and read the Nutrition Facts Panel before they select and purchase the snack.  In addition, if snack packages change and the calorie information - for the entire package - can be clearly seen in a front of pack label, the machine will be exempt.

I am not sure how this could impact the Institute of Medicine's Front of Pack labeling recommendations and the FDAs delay in implementing them.  On the one hand, vending companies and their professional organization, the National Automated Merchandising Association might lobby congress to get FOP labels mandated, in which case, snacks would come prelabeled and the vending companies wouldn't have to do anything.  On the other hand, the Grocery Manufacturers Association might push back -hard -against a front of pack law based on the IOM recommendations, because the IOM recommends a rating system - in other words, the snack could be rated as POOR.  I am for this type of labeling, as you know.  Here is one past post in reference.

I don't generally purchase snacks from vending machines, but I look forward to the implementation of this law. I'd much rather have information available if I needed it than be forced to make a decision without it.

See the rule in the Federal Register 

Monday, December 8, 2014

Federal Nutrition Labeling - Exemption from Preemption?

YES!  I know that the FDA released the final rule for the national restaurant menu and vending machine nutrition (i.e., calorie) labeling law.  I haven't blogged about it yet because I was a little busy and I was trying to find out more, if I could, about the preemption piece.  To be clear, the final rule does a lot of what public health advocates, such as myself, hoped it would do and importantly, it includes movie theaters and prepared foods at grocery and convenience stores. Many reporters and bloggers have been talking about the final rule, and I hope that my post offers a little more than the usual fare (pun intended).

The FDA has a good Q and A page where you can learn more about which places will have calorie info available for you.  Click here to see and search the Q and A.  I went to the website myself to see if I could find out about bowling alleys, which I consider a caloric cesspool; and I found this beautiful paragraph

Establishments such as restaurants that are quick service and/or sit-down, food take-out facilities, pizza delivery establishments, food facilities in entertainment venues (e.g., movie theaters, bowling alleys), cafeterias, coffee shops, superstores, grocery and convenience stores, are covered if they meet the criteria listed above. 
Now there are two important qualifiers to the rule and as I've learned from some friends in King Co Washington and Philadelphia PA; its not as simple as it first seems.  I also spoke - through email - to a legal counsel at Perkins Coie LLP in Colorado.

1) The rules only apply to businesses with 20 or more establishments (re the 'criteria listed above' comment in the FDA paragraph I quoted). So YES to McDonalds and AppleBees and no to that quaint family owned bistro by your house. Yes to the AMF bowling alley with more than 300 lanes in the USA, no to the vending company with 10 machines. [I cannot wait to see the menu boards at bowling alleys (maybe my sister will send me a picture!).  I suddenly feel compelled to research how calorie laws affect the eating habits of bowlers!]

2) As the NRA hoped, the final rule does preempt the 15 or so existing state and local menu labeling laws (there are no vending laws to preempt). On the face of it, preemption means that no state or local law can be different from the national law. The national law says the menu boards, food tags and print menus must list total calories for each item - next to the item and in font the same size as the font listing the price; establishments also have to provide a statement regarding the standard 2000 calories a day contextual statement, and provide additional nutritional information in print, upon request. (Frequent readers of my blog know I think the contextual statement should say many people need closer to 1500/1800 calories a day, but it doesn't).

These 2 things (businesses included and preemption) play into each other in a way you might not expect, and in a way I didn't really see until someone pointed it out to me.  First, it is believed that a restaurant under the jurisdiction of the federal law, like AppleBees, cannot be made to display anything more than calorie content. Two local laws that I am aware of, one in King Co Washington and the other in Philadelphia PA, mandate that restaurants of certain size, also display fat grams and sodium mg on their print menus. It is possible that the federal law has a floor preemption instead of a ceiling.  IN other words, the law could mean that restaurants have to have calorie info but state and local laws could require more.  Most people (including two lawyers) have assured me that the preemption is a ceiling and states/localities can't require more than calorie disclosure. States and localities who want to force restaurants, by law, to disclose other nutrient information can petition the FDA for an exemption from preemption (great phrase!).  Stay tuned for more on King Co and Philadelphia's laws.  I will say that Philadelphia has a strong health related case for forcing the disclosure of sodium, and they know it.

But here is the clever part(and I am not sure who bested who on this one, the FDA or the National Restaurant Association).  States and localities can require establishments that are not under the FDA rule (i.e., local, small chains) to comply with a more involved law - and establishments that are not under the FDA's jurisdiction can OPT IN to the FDA rule.  Restaurants (or vending companies for that matter) that operate less than 20 establishments can make themselves fall under the FDA law.  If they opt in, then they cannot be targeted by state and local law.  SO, the new rule actually encourages restaurants to get on board because it can protect them from having to disclose, on their menu and menu board, more information. That sort of thing was exactly what the Restaurant Association was trying to shield their members from - having to comply with a patchwork of laws.

*** BTW making a company tell its customers what is in the products it sells is NOT an infringement on liberty!  Watch out for that kind of fear mongering spin - consumers have always had a right to know the contents of their purchases.