If You Operate 20 or More Food Vending Machines, Here is What You Need to Know

The FDA believes that by requiring vending machine operators to provide accurate and clear calorie information for food sold from their vending machines, consumers will be able to make more informed and healthy dietary choices. To that end, on December 1, 2014, the FDA implemented the vending machine food labeling provisions contained in section 4205 of the Patient Protection and Affordable Care Act of 2010 (ACA) (P.L. 111-148) by establishing requirements for providing calorie declarations for food sold from certain vending machines. Section 4205 of the ACA added section 403(q)(5)(H)(viii) to the Federal Food Drug & Cosmetic Act (21 U.S.C. sec. 343(q)(5)(H)(viii)).

The new regulations (21 C.F.R. 101.8), not effective until December 1, 2016, apply only to “vending machine operators” who own or operate 20 or more “vending machines” or who register with the FDA and voluntarily agree to be subject to the new requirements.

To determine if the requirements are applicable to a person or entity, they must first determine if their machines are “vending machines” and whether they are a “vending machine operator” under the FDA’s definition. If they determine that they are a vending machine operator with 20 or more vending machines under the FDA definitions, then they must abide by the rules governing the location and format of the calorie declaration, the disclosure of contact information, and the maintenance and availability of certain records. The failure to comply with the calorie declaration requirements will render the food in the vending machines adulterated under section 403 of the FD&C Act (21 U.S.C. 343).

Definitions

Under the new regulations,  a vending machine is defined by the FDA to mean “a self-service machine that, upon insertion of a coin, paper currency, token, card, or key, or by optional manual operation, dispenses servings of food in bulk or in packages, or prepared by the machine, without the necessity of replenishing the machine between each vending operation.”

According to the FDA, this definition of vending machine could encompass, but is not limited to, vending machines that sell soft drinks, packaged snacks, hot-and-cold cup beverages, refrigerated prepared food (such as those sold from turnstile vending machines), and handfuls of nuts or candies (such as those sold from bulk vending machines). Game machines are excluded from the definition, even if they sometimes dispense candy or other edible items as part of the game.

A vending machine operator is defined as “a person or entity that controls or directs the function of the vending machine, including deciding which articles of food are sold from the machine or the placement of the articles of food within the vending machine, and is compensated for the control or direction of the function of the vending machine.”

Location of Calorie Declaration

If the food sold from the vending machine permits the consumer to examine the Nutrition Facts label before purchase, or otherwise provides visible nutrition information at the point of purchase (such as through front-of-pack calorie labeling), then no further calorie declaration is required. For all other articles of food that do not meet this criteria, the vending machine operator must provide calorie declarations on a sign (which can be a sticker) close to the article of food or selection button (i.e., in, on, or adjacent to the vending machine). The sign does not need to be attached to the vending machine as long as the calorie declaration is visible at the same time as the food, its name, price, selection button, or selection number is visible. Electronic or digital display of the calorie information is also permitted.

Calorie Declaration Format

Generally speaking, the calorie declarations must be clear, conspicuous and prominently placed. When the calorie declaration is in or on the vending machine, it must be:

  • in a type size no smaller than the name of the food on the machine, the selection number, or the price of the food as displayed on the vending machine, whichever is smallest;
  • displayed with the same prominence, meaning the same color, or a color at least as conspicuous, as the color of the name or price of the food or selection number; and
  • set against the same contrasting background, or a background at least as contrasting as the background used for the item it is in close proximity to, i.e., name, selection number, or price of the food item as displayed on the machine.

When the calorie declaration is on a sign adjacent to the vending machine, the calorie declaration must be (1) in a type size large enough to render it likely to be read and understood by the consumer under customary conditions of purchase and use, and (2) in a type that is all black or one color on a white or other neutral background that contrasts with the type color.

Vending machine operators may rely on a number of ways to determine the calorie content for foods sold in their vending machines, including the food package’s Nutrition Facts Label, the manufacturer or supplier of the food, nutrient databases, cookbooks, or laboratory analyses.

Recordkeeping

The FDA expects vending machine operators to generate and maintain a record of the information regarding how they determined the calorie content for their vending machine foods. Operators should be prepared to share the record of information with the FDA during an inspection if the agency needs to determine whether the posted calorie declarations are truthful and not misleading.

Enforcement

The FDA is requiring vending machine operators to disclose their contact information on their vending machines. This information must include the operator’s name, telephone number, and mail or email address. The agency plans to use this information to contact operators for enforcement purposes. The failure to comply with the calorie declarations requirements will render vending machine food misbranded under the federal Food, Drug & Cosmetic Act.

FDA Guidance

In August 2010, the FDA issued guidance titled “Questions and Answers Regarding the Effect of Section 4205 of the Patient Protection and Affordable Care Act of 2010 on State and Local Menu and Vending Machine Labeling Laws.” The guidance was last updated on July 9, 2014. Additional information can be obtained from the FDA’s Menu and Vending Machines Labeling Requirements webpage, which was updated on December 2, 2014.