What’s on the menu? Committee selects hearing on menu labeling requirements

The U.S. House Energy and Commerce Subcommittee on Health held a hearing to discuss with interested parties legislation concerning menu-labeling requirements mandated by Section 4205 of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148). In response to small business outcry and confusion, H.R. 2017, the Common Sense Nutrition Disclosure Act, sponsored by Rep. Cathy McMorris-Rodgers (R-Wash) and Rep. Loretta Sanchez (D-Calif), would clarify and allow flexibility for small businesses from some of the FDA’s menu labeling requirements.

Final rule

The Final rule update restaurant menu labeling requirements in accordance with the ACA (79 FR 71156, December 1, 2014), requiring nutrition information be made available to individuals in a “direct, accessible, and consistent manner” by December 1, 2015. The Final rule is applicable to establishments with 20 or more locations that are a restaurant or similar retail food establishment offering for sale restaurant type food, unless it is a school. The definition includes bakeries, cafeterias, coffee shops, convenience stores, delicatessens, food service facilities located within entertainment venues, food service vendors, food take-out and/or delivery establishments, grocery stores, retail confectionary stores, superstores, quick service restaurants, and table service restaurants (see Finally final: FDA releases ACA-mandated menu labeling requirements, Health Law Daily, December 1, 2014).

Small business concerns

Opponents of the Final rule’s menu labeling requirements note the burden imposed on small businesses. Earlier this year, a group of senators wrote a letter to the FDA stating that while there was a clear benefit to improved access to nutritional information for consumers, the “lack of clear and consistent guidance” from the FDA would make it difficult for small businesses to implement the requirements by the 2015 deadline (see Senators to FDA: put the brakes on restaurant labeling requirements, Health Law Daily, May 19, 2015).

Hearing

In an opening statement at the hearing, Rep. Fred Upton (R-Mich), Chairman of the Energy and Commerce Committee, stated that while there was no disagreement that the U.S. should have a national policy for menu labeling, the FDA had failed to provide the necessary clarity for small businesses.

Rep. Joseph R. Pitts (R-Penn), Subcommittee Chairman, noted in his opening statement that the House was concerned that the Final rule went beyond what was intended by the ACA. According to Rep. Pitts, small businesses that are not chain restaurants but subject to the Final rule would face a dramatic increase in regulatory compliance costs. He noted that the Office of Management and Budget had determined the Final rule would require over 14 million hours for compliance. As a result, consumers would likely see higher food costs and potentially fewer choices. Rep. Pitts further stated that retailers could find it more advantageous to stop selling restaurant-type food to avoid compliance, as pre-packaged foods had less burdensome requirements.

Regulation opponents

On behalf of the National Association of Convenience Stores, the CEO of E-Z Mart Stores, Inc. addressed the Committee, affirming support of H.R. 2017 and noting that the bill would provide retailers greater flexibility to comply with federal menu labeling requirements without compromising consumers’ ability to receive nutrition information. The Director of Strategic Initiatives at K-VA-T Food Stores, Inc., on behalf of the Food Marketing Institute, noted concerns that the FDA regulations were for a format with limited offerings, standard portions, and more applicable to pre-printed menus. Grocery store operations that carried, on average, more than 36,000 food items that varied greatly could not be expected to meet the same requirements. Additional testimony on behalf of the American Pizza Community supported H.R. 2017.

Regulation supporters

The CCO of Dunkin Brands, Inc., on behalf of the National Restaurant Association, supported the regulations and stated that a national standard for providing nutrition information on all restaurant type foods was appropriate. The Association believed the FDA generally followed the intent of the ACA mandate and did so in a manner to largely minimize cost and burden to the food service industry. The Association further stated that the benefits of nutrition labeling were important no matter the size of the menu or the percentage of sales from food, and it hoped that Congress would maintain the labeling regulation as it was written. According to the Association, grocery and convenience stores are increasingly competing against restaurants. While the competition was welcome, it believed that the restaurant-type food grocery and convenience stores sell should be held to the same standards as the food that traditional restaurants sell.

The Center for Science in the Public Interest (CSPI) testified that menu labeling allowed consumers to exercise personal responsibility and make informed choices for a growing part of their diets. In addition, CSPI noted that menu labeling provided a reasonable small business exemption; chains with fewer than 20 outlets are exempt. Creating a blanket exemption to chain supermarkets and convenience stores for calorie information would not accomplish the goal of providing nutrition information to the majority of Americans who wanted such information.