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Menu labeling fix passes House, but Senate passage uncertain

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Food retailers are hailing the U.S. House for passing the Common Sense Nutrition Disclosure Act (H.R. 722) Tuesday (Feb. 6) by 266-157-1.

The menu labeling bill supported by the supermarket, pizza and convenience store industries passed the House last year but never gained traction in the Senate. This year’s version passed the House Energy and Commerce Committee by 39-14. And while 32 Democrats voted for the bill on Tuesday, the bill would need at least nine Democrats in the Senate to pass.

Reps. Cathy McMorris Rodgers (R-Wash.) and Tony Cardenas (D-Calif.), the bill sponsors, said a legislative fix is necessary to ease criminal penalties for good faith mistakes in calorie labeling and to help pizza chains that are more likely to take orders remotely.

“A menu board may work for some businesses where customers order at the counter where they also pay, but for an establishment where most people now order online or from a phone, having the calorie information when they pick up their order won't be very helpful to that consumer,” said Rep. Fred Upton (R-Mich.). It also takes steps to “preserve local foods and fresh items that might be sold at just a few locations. To do so, the bill clarifies that menu labeling regulations are intended for standard menu items, defined as those items with substantially the same recipe, prepared in substantially the same way, with substantially the same food components that are routinely included on a menu or menu board or are routinely offered as a self-service food or food on display at 20 or more locations,” he said.

More than 200 companies wrote Congress in support of H.R. 722 this week.

“FDA wrote the rule essentially for one type of restaurant – those with a static or fixed menu – and ignored all others in the marketplace. The recent FDA guidance was unable to resolve the issues we needed resolved,” the letter said.

The bill “eliminates the possibility that store managers would be subjected to felony penalties for inadvertent errors in the calorie disclosures,” but it “leaves FDA as the ‘cop on the beat’ for compliance,” said a diverse group of companies, including Godfather’s Pizza, Hy-Vee, Quick Stop, and Turkey Hill.

Supermarket chains have advocated reining in FDA’s regulations and hope the House vote sends a signal to the Senate.

“This strong bipartisan effort demonstrates both Congress’ and food retailers’ interest in providing standardized nutrition information to customers without constant worries about fines and penalties for a slight error,” said Jennifer Hatcher, Food Marketing Institute (FMI) chief public policy officer, after the vote.

“Food retailers go to great lengths to provide their customers with the nutritional information they desire, including employing dietitians in nearly 90 percent of supermarkets. This legislation gets rid of the ’gotcha state’ and allows food retailers to provide meaningful nutrition information to their customers without the fear of penalties of fines for simple errors,” she said.

Pizza chains have targeted FDA’s menu regulations, saying it’s difficult to rely on the menu board for a wide assortment of food toppings and would rather post nutrition information where customers look for it: online or on a mobile app.

Chief supporter of the legislation, McMorris Rodgers said, “This bill isn’t about the merits of calorie counts; it’s about providing flexibility for businesses to provide that information in a way that makes sense for them and their customers.”

After the bill passed, top Republicans on the House Energy and Commerce Committee said H.R. 722 “will increase access to information, prevent frivolous lawsuits from hampering individuals and businesses, and allow businesses to provide customized menu information. It’s a win-win for everyone.”

Delays menu labeling

But opponents of the bill said it would delay the nearly eight-year-old calorie disclosure law – designed to help consumers make better choices when dining out – from going into effect in May.

FDA recently drafted guidelines and plenty of restaurants and other establishments have already invested to started complying with posting calories, said Rep. Jan Schakowsky (D-Ill.). She called it “another handout for business” and a way to keep nutrition disclosures away from consumers.

She said the bill allows food establishments to “set arbitrary serving sizes” to cut calorie counts and sends FDA “back to the drawing board” to rewrite provisions.

Rep. Rosa DeLauro (D-Conn.), who also argued against the bill, said she wanted to dispel a myth that small businesses would be hurt by the regulations. It would only apply to chains of 20 or more establishments. “Once again, misinformation being distributed by the majority,” she said on the House floor.

“The Republican majority is attacking your ability to make informed and nutritious choices when you go out to eat. They should abandon this rollback, which would destroy years of impactful work on menu-labeling,” she said.

A similar bill passed the House in February 2016 by a 266-144-1 vote.

For advocates of menu labeling, it seems like the compliance date is finally around the corner.

FDA officials committed in September to begin enforcing the menu labeling regulations no later than May 2018, under a deal reach between the agency and consumer advocates, who took FDA to court over its decision to delay menu labeling for a second time.





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