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 

Has Menu Labeling Had an Impact on TV Ads?

   There is a lot of opinion and a little bit of science for and against the (conspicuously absent) national menu labeling law.  In case you have forgotten - it has been 4 years - the law requires restaurant chains with 20 or more outlets to post calorie information for all standard items at the point of decision making/purchase (i.e., the menu board or menu).  If you have not been following the issue with me, let me state up front that I am a proponent of nutrition disclosures, especially calorie amounts, at all places where food and beverages are sold.  I believe that the information helps certain consumers and harms none.

   What I take away from the many research studies (Krieger & Saelens, 2013; Liu, 2013; Sinclair, Cooper, & Mansfield, 2014; Wei & Miao, 2013) that have tested local laws (and field/lab experiments) is: 1) for some people, the information is helpful and leads them to choose lower calorie options, while others either don’t see the information, don’t know what to do with it (when calorie disclosures come within a context, the information is more meaningful), or see it and actually choose higher calorie meals, and 2) some researchers are assessing whether menu labeling has an impact on weight or BMI, which is a long term goal and not necessarily the primary goal of calorie disclosures.

   What is of greater and more immediate interest to me is 1) whether or not consumer attitudes about and understanding of calories change after the introduction of calorie information and 2) whether or not the items available to purchase become lower in calories.  If you are interested in a good over view of calorie content in major restaurant items circa 2010, see this article by Wu (Wu & Sturm, 2013).

    On that last note - do restaurant owners change their behavior - I have something promising to report.  I have seen at least 3 TV commercials from different restaurants that post the calorie content, out loud, in a caption or both.  For example, McDonald’s states that its egg McMuffin has 300 calories in this TV ad, and Dunkin Donuts promotes a less than 300 calorie breakfast flat bread here.  I am pretty sure that I have seen a Taco Bell ad showing calorie content as well.  This is something new and though I don’t have evidence to back my assertion, it is possible that the state and local laws, along with the national labeling expectations and all this talk about calories, is leading consumers to expect the information and companies to provide it - and in so doing, the restaurant owners realize that they might need to offer lower calorie options.  YES, there are still plenty of ridiculous offerings, see the CSPI Xtreme Eating 2014, but that doesn’t negate the positive.

    Block and Roberto (Block & Roberto, 2014) encourage us to look for myriad positive outcomes of menu labeling as we continue to study the impact of such laws, I think they are right, and I add these commercials to the examples they provided in their recent publication (free on line).

Block, J. P., & Roberto, C. A. (2014). Potential Benefits of Calorie Labeling in Restaurants. JAMA.

Krieger, J. W., & Saelens, B. E. (2013). Impact of menu labeling on consumer behavior: A 2008-2012 update. Minneapolis, MN.

Liu, J. (2013). Menu labeling and food choice: A systematic review of the literature concerning the effects of menu labeling on consumer food choices.

Sinclair, S. E., Cooper, M., & Mansfield, E. D. (2014). The Influence of Menu Labeling on Calories Selected or Consumed: A Systematic Review and Meta-Analysis. Journal of the Academy of Nutrition and Dietetics.

Wei, W., & Miao, L. (2013). Effects of calorie information disclosure on consumers’ food choices at restaurants. International Journal of Hospitality Management, 33(0), 106-117. doi: 10.1016/j.ijhm.2012.06.008

Wu, H. W., & Sturm, R. (2013). What's on the menu? A review of the energy and nutritional content of US chain restaurant menus. Public health nutrition, 16(01), 87-96.

Popcorn - Nutrition Labels and SES

In a study currently published in the journal Appetite, researchers Crockett, Jebb, Hankins and Marteau (2014) tested the effect of a low fat and a high fat label placed on a bucket of popcorn and the amount of calories consumed.  In other words, will the amount of popcorn calories be different based on whether a person has a low fat, high fat or no label?  In the study, the researchers also tested to see if there was a relationship between a persons’ BMI; concern about their weight (either they said that they were dieting to lose weight or that they were trying to maintain their weight); or their socioeconomic status (a combined measure of educational attainment and income, which in this case was ascertained by zip code, so more of a neighborhood SES).  The researchers looked at two way (e.g., did the effect of the label play out differently based on whether or not someone was concerned about their weight) and three way (e.g., did the outcome depend on whether a person was concerned about their weight, but only if that person was also low SES (i.e., poor)) interactions. 

The study took place in the UK, and though the researchers did what they could to mask the experiment (i.e., they told people that they were assessing how emotion affects taste), it was still unnatural (i.e., 1) they knew they were in a study and that researchers were going to collect the popcorn buckets at the end, and 2) they had to fill out a questionnaire at 3 time  points during their stay at the cinema).  Nonetheless, and taken with a little popcorn salt, the findings were interesting.

First, the use of labels in general, a RED high fat or a GREEN low fat did not change consumption.  Whether a person got a bucket of popcorn with no label, a red label or a green, they ate on average 549 calories if it was toffee flavored and 242 calories if it was salt flavored (from this I am guessing butter was not involved!).  There was not an interaction between label and BMI or label and weight concern.  So for the basic question of whether labeling led to a difference in the amount of calories consumed, segmenting people based on BMI or weight concern didn’t change the outcome - there was no effect.

However, when looking at 3 way interactions, the researchers found some interesting paradoxes ~ though not necessarily new ones.  SES does seem to matter when you also consider weight concern.  Interestingly, a person who was concerned about their weight and was more affluent ate more popcorn when they had a low fat label than a similar person who was not concerned about their weight.  The higher SES person who was concerned about their weight ate MORE with a low fat label; on the other hand, a low SES person who was concerned about their weight ate less popcorn whether the label said low fat or high fat.  In other words, when they had a popcorn with a label on it, they ate LESS than if they had a popcorn without a label.  The researchers expect that the label is a prompt - a reminder that calories matter. 

What does all this mean?  Well, you have to answer that question for yourself and do read the study if you are so inclined, because I am not sure that I interpreted everything correctly.  My thought, much in line with the researchers, is that nutrition labeling can work, but we need to understand more about how it works and for whom.  I also think that the type of label is of utmost importance.  I did not like these  because low or high fat doesn't tell you anything about calories.

Crockett, R. A., Jebb, S. A., Hankins, M.,& Marteau, T. M. (2014). The impact of nutritional labels and socioeconomicstatus on energy intake: an experimental field study. Appetite.

Will the Supreme Court Do What the FDA Won't? Legitimize Food Labels.

POM Wonderful, LLC the maker of POM pomegranate juice has been trying to sue Coca Cola for false advertising because its Minute Maid drink called Pomegranate Blueberry Flavored Blend of 5 juices (really that is the name) only contains a trace amount of pomegranate and blueberry juice, in fact less than 1%.   POM Wonderful sells juice blends and 100% juices; it sells 100% blueberry POM and 100% pomegranate POM, and a pomegranate blueberry blend.  The label for the blend clearly notes that it is 85% pomegranate and 15% blueberry.  Thus, the company wants to sue because they believe that Coca Cola is -by way of their label - drawing customers away from the POM blend. There is nothing on the Pomegranate Blueberry Flavored Blend of 5 juices label that indicates how much of the blend is pomegranate and how much is blueberry, but clearly most of it is something else.  I think POM has a fair point.

You can see the court brief here.  The concern about the law suit is whether its the FDA that is supposed to do something - is Coca Cola breaking any label laws under their jurisdiction (no) - because if so, then the private company cannot, or if it isn't the FDA's responsibility then can a private company sue another under the Lanham Act even if this seems like an FDA related labeling issue.  The decision by the US Supreme Court, which is being talked about a lot today, was that POM Wonderful can go ahead and sue Coca Cola.  

I think that is good.

I understand also that POM has an FTC labeling issue to contend with - a 'false' health claim - and that same issue is likely to hit Coca Cola whose juice drink label purports "brain nourishment".

Some public health advocates, consumer activists and business attorneys consider the courts decision to be a potential game changer.  Me, too.  I have bemoaned the, capricious at best, actions of the FDA on food labeling for years.  Two examples are 1) The FDA is not moving forward with restaurant menu labeling which was passed 4 years ago and 2) they are not putting any teeth into definitions for food labels, such as All Natural.  That is why I see this as a game changer.  If companies or activist organizations like CSPI can sue over label issues - false, misleading, opaque - then companies in their cross hairs will CHANGE.  I imagine that big businesses have the resources and motivations necessary to go after their competitors, and I expect that consumers want to be told the truth.  There is a huge difference between 85% pomegranate juice and 0.3% pomegranate juice.

Now, lest you think I have had a change of heart about juice, I assure you I have not.  Many of the juices sold by Coca Cola/Minute Maid are only 25% juice and contain calorically dense high fructose corn syrup; but even 100% juice is high in calories and light on fiber/substance.  Though I am 100% in favor of FRUIT and 0% in favor of fruit juices, I am 110% in favor of truth in labeling.

The other effect of a national restaurant menu labeling law

You have probably read news stories suggesting that calorie information on restaurant menus and menu boards does not work.  It does appear that state or city nutrition menu labeling laws have not had a big impact on the average amount of calories customers purchase.  However, I have noted several research studies that are exceptions to these findings and I continue to believe that providing nutrition information at the point of decision making is a good idea.  The labeling can help reduce the over consumption of calories that occurs when people eat out.  I also believe, based on the research of others (see e.g., Ellison), that using a traffic light presentation (i.e., green, amber or red based on calorie amount) will enhance the effectiveness of menu labeling.  

For the most recent scientific review of menu labeling please click here.

Today I want to mention progress on another hoped for outcome related to menu labeling - changing the amount of calories in meals restaurants offer. The FDA still hasn't issued the final rule on how restaurants are to present the information, but in expectation, it would seem, restaurants are promoting special menus that offer lower than 'usual' calorie amounts.  (Recall the studies I have cited in past posts which showed the average chain restaurant meal having over 900 calories.)

In my anecdotal review (i.e., I have not systematically studied restaurant menus before and after the legislation was passed, or as the final rule approaches, or controlled for the fact that it is the first of the year), I found at least 9 major chain restaurants (e.g., Apple Bees, Outback, Macaroni Grill, Subway, McAlisters, Long John Silvers, IHOP, TGIF) who are promoting entrees with 500 to 600 calories or less.  Subway is advertising breakfast options at 200 or less.

One of the distal (or immediate) outcomes of a menu labeling law is that it heightens peoples awareness of calories and makes calories seem more important. I believe that menu labeling IS effective for these outcomes. The restaurant industry is aware of this and that is why menu labeling laws also work to change what is available - in other words, law can change the environment. Law can have a greater impact on population health than interventions aimed at individuals.  I am confident that once the labeling rule is published and restaurants nationwide fulfill their obligations to post calorie information, we will begin to see a change in the amount of calories purchased and in the future, perhaps, a reduction in the prevalence of diseases associated with being over fat.

Labeling Rules ~ The FDA has us all in limbo

Any day now, or more likely, sometime in 2014, the FDA will release the final rule for the national nutrition/menu labeling law officially meant to apply to restaurants (sit down and counter chains), vending companies, and similar retail establishments.

As of today, the consumer (you and I),  health advocates (myself,  CSPI, the RUDD Center,  many others), the National Restaurant Association, the National Grocers Association, the Association for Convenience and Fuel Retailing, pizza restaurants and other food selling/entertainment venues (e.g., bowling alleys, cinemas) remain unawares and unprepared for what will be required.

Of those listed above, the consumer interest groups (and thus a majority of the general public), public health folks and the National Restaurant Association supported the menu labeling law, but the others did not nor did they expect to get caught up in it.  My personal belief is that anyone selling ready to eat, unpackaged food has an obligation to share with the buyer of that food, pertinent nutrition information.  I would include food sold from steam tables in grocery stores, hot dogs and the like sold in convenience stores and items sold from concession stands at bowling alleys, sports arenas and movie theaters.

I do think that pizza joints should get some leeway in how they present the information due to the individual, made to order nature of pizza.

Once the FDA makes its announcement, retailers will have 6 mos to 1 year to comply.  Then the next battle begins.  Updating the nutrition facts panels on packaged foods. In this case, the concern 
(of food companies) is whether the update is going to mandate  labels that imply a foods goodness, e.g., star ratings or multiple traffic lights.

Information for Food Decisions

   The Dietary Guidelines for Americans recommend that calories be monitored on a daily basis.  The recommendation is based on the importance of consuming the appropriate amount of calories to prevent 'over fatness' - which appears to increase the risk for several diseases.
   To be fair, clear and honest, many of us do not know our calorie needs - the amount that balances with our energy expenditure.  This lack of knowledge needs to be addressed, but is not the focus of this post (calorie needs are assessed on an individual basis).  For now, lets pretend that everyone does know their personal needs- and agree that for most of us its between 1800 and 2500 calories a day (NOTE: if you need 1800 calories a day and consistently eat 2500 calories a day, you will have excess fat!)
   Presuming you need 1800 calories a day and you know this, and you obtain many of your meals away from home, to stay on target you need access to nutrition information at the point of purchase at those places . 
    I feel it is imperative that nutrition information be available everywhere  food decisions are made, but it is not.  The national menu labeling law (passed within the Affordable Care Act) amends an older law, the Nutrition Labeling and Education Act which excluded ready to eat foods, like those at restaurants- from nutrition labeling.  This oversight was a mistake and it took a new law to fix it.  The fact that the new law does not include all places that sell ready to eat foods, e.g., entertainment venues, is dumbfounding.  The FDA can fix this - they are responsible for the final rules.  It needs to be fixed now, not 20 years from now.  This is a real fight and certain industries and labeling advocates are battling it out - leading in some part to the delay of national labeling.
   The Center for Science in the Public Interest is lobbying for the expansion of nutrition labeling and today they shared the picture below from a New York City cinema.  NYC has a much broader labeling law, however, the federal law will override state and city laws.  That means even the NYC policy will not include movie theaters, (or theme parks, bowling alleys, etc.) if the federal law doesn't include them.  Take a look at the numbers below and see how important this information is to the person trying to stay in their limits.  BTW, we should all try to stay in our limits, at least most days.   
 

To take part in the campaign to expand labeling - click HERE

Just a note, the Nutrition Labeling and Education Act is the one that mandated nutrition information and nutrition facts panels on the foods you find on grocery store shelves.