CHICAGO -- The recent menu-labeling deadline extension has raised as many questions as it relieved, and the Food and Drug Administration’s (FDA) proposed menu-labeling regulations were a hot topic of discussion during CSP/Winsight’s C-Store Foodservice Forum held May 3-5 in Chicago.
From the deadline extension to questions about enforcement and the long-range effect on convenience stores, retailers were eager to learn as much as possible about how the FDA plans to implement menu labeling.
Rick Sales, president of Abierto Networks, York, Maine, having recently spoken with a source at the FDA, shared these findings during a Q&A session ...
1. The interim rule
Q: How does the interim final rule affect the FDA menu-labeling regulation?
A: The rule, approved May 1, extends the compliance date one year until May 7, 2018, and opens a 60-day comment window on how the agency may reduce the regulatory burden and allow for alternative approaches.
2. FDA enforcement
Q: What enforcement activities should convenience stores expect from the FDA?
A: The FDA’s intent for the first year is to concentrate on education and outreach to help retailers come into compliance. The FDA has no plans to pursue enforcement during the first year but is currently finalizing its enforcement strategy for year two and beyond.
3. State and local enforcement
Q: What enforcement activities should retailers expect from state and local agencies?
A: The FDA is working with state and local officials to enter into contracts for enforcement. Currently, the FDA does not have any contracts with any states or local authorities. If no contract is in place, it is unlikely that state and local officials will enforce the regulation on their own. California is the only state that currently has its own requirements.
Q: What happens if a consumer, competitor or regulator reports a retailer for noncompliance?
A: There are several possible steps. First, the FDA would determine whether the retailer is actually required to comply. Next, the FDA would send an informal letter to the retailer indicating that it is aware of possible noncompliance in the store and would offer further information and assistance. Any action taken beyond that would depend upon the individual situation.
5. Retailer appeal
Q: How does a retailer appeal a finding?
A: If you receive a letter from the FDA regarding your menu-labeling compliance, contact the FDA and they will tell you how to fix the issue and give you time to implement that fix. Keep in mind that the first year of the regulation will be focused on education and outreach.
6. Menu review
Q: Will the FDA review sample menus for compliance?
A: No. It will answer specific questions via email but will not accept sample menus for review. The FDA has no “prior approval authority” for menu labeling.
7. Record-keeping requirements
Q: What are the record-keeping requirements of the regulation?
A: There are two self-certification documents required—nutrient analysis and method of preparation—upon request by the FDA. There is no expectation that the documents and supporting records are available for immediate inspection. But if requested, the FDA expects the records within four to six weeks. The method of preparation certification must be signed by a responsible individual at your store.
8. Regulator training
Q: How will the FDA train state and local regulators?
A: When the FDA contracts with a state or local agency for enforcement, a Statement of Work is developed to provide clear instructions and establish a common-ground understanding on what is expected. General education modules and a training website for inspectors are in the works.
9. QSR concerns
Q: My store doesn’t meet the criteria to be covered by this regulation, but I have an in-store QSR. Does that change anything?
A: Yes. National and regional in-store QSRs with more than 20 locations are covered by the regulation and must provide retailers with an FDA-compliant menu.
10. State regulations
Q: What about California’s SB 1420 menu-labeling law?
A: Eight years after being signed into law, California’s menu-labeling law went into effect Dec. 1, 2016. Local health departments may begin inspections, but are encouraged to work with restaurants and stores and not issue violations during the first six months of enactment.
11. Final thoughts
Q: Any final thoughts from the FDA?
A: The FDA says its goal is to make sure that consumers get more accurate information about the foods they are consuming.
"In general we are hoping that all stakeholders will participate in the comment process, both companies that have already implemented and ones that are still working out the details," the agency said recently. "It would be most helpful if we can hear ‘best practices’ from those establishments that have implemented and how they dealt with some of the challenges that they faced and that are noted in the interim final rule.
"We want to use this time to continue to outreach to assist establishments and consider where additional flexibilities may exist."