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 

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