Foodservice associations presented their comments and concerns about proposed federal menu-labeling regulations to the U.S. Food and Drug Administration Tuesday, the final day for submitting public comments on the legislation to the agency.
The regulations, which are a provision of federal health care reform, or the Patient Protection and Affordable Care Act of 2010, were published April 1 by the FDA. The public and interested parties were given 90 days to comment on the regulations.
Comments on behalf of the foodservice industry — which addressed such concerns as flexibility, timing and costs — were submitted by a coalition comprising the National Council of Chain Restaurants and the National Restaurant Association, as well as by the International Franchise Association.
“Our members strongly supported adoption of a national menu-labeling law, and we look forward to the orderly implementation of these requirements,” said NCCR vice president Scott Vinson. “However, we have grave concerns regarding certain of the FDA’s proposed interpretations of the [legislation].
“We hope the FDA will carefully consider our comments and adjust the final regulations to be consistent with the statute,” he said.
The regulations outline nutrient-labeling requirements for restaurants that are part of a chain with 20 or more outlets. Restaurants affected would be required to prominently post calorie counts for standard items on menus and menu boards as well as calories per serving for each item on a buffet, salad bar, cafeteria line or self-service display.
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“Given the complexity of the restaurant industry and the many different types of concepts ranging from quick service to fine dining, we appreciate the FDA’s efforts to draft these regulations,” said Dawn Sweeney, president and chief executive of the National Restaurant Association.
“In our comments we have outlined some of the ways we believe the regulations can be improved and strengthened, to better allow restaurants and foodservice outlets to most effectively display nutrition information.”
Issues addressed by the coalition’s comments include:
• Nutrition information and enforcement
The coalition asks that the FDA utilize a “reasonable basis” standard rather than a standard use for packaged foods produced in a food-processing facility to determine nutrition calculations. The reasonable basis determination — which was developed by the FDA 20 years ago for chain restaurants seeking to voluntarily offer nutrient guidelines to consumers — may be based on nutrient databases, USDA-approved cookbooks, laboratory analyses and other reasonable means described in FDA’s regulations. Restaurants that employed a reasonable basis standard to arrive at nutrition levels and have training and operation controls in place would not be punished for potential variations in nutrition content.
• Who is included
The NRA said it “feels strongly” that “similar retail food establishments with restaurant-like operations” should be required to adhere to the same menu-labeling requirements as restaurants. The proposed regulations currently do not include movie theaters, amusement parks, general merchandise stores, hotels, trains or planes.
“When Congress wrote the legislation, it had a notion of a level playing field,” Vinson said, noting that it also was unclear whether convenience stores and service stations fell under the regulations.
• Disclosure flexibility
Given the diversity and complexity of the restaurant industry, the coalition recommends that broader flexibility is required to convey nutrition information in a way that works for a restaurant and customers. The proposed regulations, for example, state that calories must be posted on menus and menu boards in the same color and similar font size and must have the same contrasting background as the associated menu item. The coalition suggests the FDA adopt standards simply stating that the nutrition information must be presented in a manner that is clear and conspicuous to the consumer. In addition, it suggests that the FDA formulate a set of rules on font size and color. If a restaurant adheres to those guidelines, it would be considered in compliance.
• Updating nutritional information
Because of factors outside a restaurateur’s control — for example, when an ingredient becomes unavailable from a supplier and nutrition content is altered by the use of a substitute ingredient — the FDA should adopt a flexible policy that allows restaurants to update menus in concert with regular menu cycles.
• Timing of implementation
FDA’s proposed regulations currently give restaurants six months to comply after the regulations are issued. The NRA, NCCR and IFA all recommend that the timeline for compliance be no less than a year.
• Costs for smaller franchisees
The IFA also told the FDA that it had “significant concerns” concerning the “economic burden” the regulations would put on two- or three-unit franchisees. “For these individuals, the prospect of implementing the new law will most certainly be a daunting and costly regulatory burden,” the IFA said in a statement.
“Although franchisors may share in some of the implementation costs, the current economic uncertainties make any unnecessary costs for small businesses burdensome and problematic.”
The FDA is expected to review the comments over the coming months and formulate final regulations.
“As the leading voice on behalf of chain restaurants, NCCR encourages the FDA to continue its work on this important rulemaking, and we urge that the final rule allow for flexibility, workability and clarity for chain restaurants and consumers alike,” said Rob Green, NCCR’s executive director.
Contact Paul Frumkin at [email protected].
