Menu Labeling: The Battle and the War

Industry associations conflict on who should be included in law

Abbie Westra, Director, Editorial, CSP

OAK BROOK, Ill. -- The commenting period on FDA's proposed menu-labeling regulations came to a close last week, and industry associations NACS and NRA disagreed over who should be included in or exempt from the law. NRA recommended all "retail food establishments" be included, while NACS recommended a provision that would eliminate the majority of c-stores from compliance.

But some industry advisors have a warning for c-stores and other operators hoping for exemption: You may win the battle, but a war still looms.

[image-nocss]NRA, an early proponent of the law as an alternative to patchwork state and local laws, called for more flexibility, a one-year implementation time period vs. the FDA's proposed six months, and an inclusion of "retail food establishments," which includes supermarkets and c-stores, in the law.

"The association feels strongly that the FDA should treat 'similar retail food establishments' with restaurant-like operations the same under the law," according to a statement released by the association.

For its part, NACS recommended c-stores not be included in the law unless 50% of revenue--including the sale of motor fuel--comes from the sale of restaurant or restaurant-type food. This would of course immediately exempt some--but not necessarily all--c-stores.

That 50% revenue marker was part of FDA's proposed regulations, though it did not specify whether the sale of motor fuels would be included in that calculation.

An alternative suggestion from FDA is to consider floor area devoted to food sales as an appropriate measurement, rather than revenue. If that were to be the chosen definer, then NACS also suggests total floor area include the pumps.

Rick Van Warner, senior partner at Parquet Public Affairs, Orlando, doesn't believe c-stores will be included in the law.

"From the best of what we've learned so far, we don't think that c-stores will be forced to comply with the menu-labeling regulations the same way that restaurants do, simply because their primary purpose is not to be a restaurant. And secondarily, their prepared food is not nearly 50% of the operation," Van Warner, who advises companies on dealing with legislative issues such as menu labeling, told Foodservice Digest.

But don't breathe a sigh of relief just yet. When FDA proposed excluding movie theaters from the law, that industry was attacked by public interest groups and lawmakers fighting for healthier foodservice and retail options. Likewise, if c-stores were to be exempt, it's not likely they would be left alone for long.

"They're not going to just sit there and say, 'Oh well, too bad. We didn't get the c-stores, [but] we got the restaurants,' " said Van Warner. Instead, once the dust settles on the national law, a new patchwork of state and local initiatives targeting c-stores and other exempt channels could take shape.

"The forces are pretty strong to have nutritional labeling everywhere. So you might as well get out in front of it."

Among NRA's other key comments:

  • Flexibility with Nutrition Disclosure. "Greater flexibility is needed in order for operators to present information in a format and manner that works for their operation and customer."
  • Reasonable Basis Standard. "The reasonable basis standard has been recognized by the FDA for 20 years in determining nutrition calculations required by the law, rather than a standard used for packaged foods produced in a food processing facility."
  • One-Year Implementation Timeframe. "Given the challenges and costs associated with creating new menus and menu boards, a one-year implementation period will help restaurants more effectively absorb the additional burden."

Other key comments from NACS include:

  • Requirements for covered establishments. "The proposed definition of covered "Variable Menu Items" vs. exempt "Custom Orders" creates confusion and NACS is asking the FDA to clarify its intent."
  • Self-serve beverages. "Allow calorie counts to be displayed based on ounces, which would provide uniform information throughout all establishments."
  • Self-service food on display. "Allow calorie information to be posted on the door of a display case, or at the 'head' of a self-service table or counter, rather than adjacent to each individual food item."
  • "Primary" menu boards. "If there are multiple menus in a single store--each offering the same food items--the store should be permitted to select the 'primary' menu that calories must be disclosed."
Abbie Westra, CSP/Winsight By Abbie Westra, Director, Editorial, CSP
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