• by Karlene Lukovitz , July 7, 2011

Various groups have now filed responses to the Food and Drug Administration's specific proposals (released in April) for implementing the new federal menu/vending labeling legislation - meaning that battle over how broadly the regulations will apply has now commenced.

The law requires all restaurants and "similar retail food establishments" with at least 20 locations to provide detailed nutrition information to customers and post calorie information on menus, menu boards and drive thru menus. Vending machines will also be required to post similar disclosures. The main battleground is over what types of venues should and should not be defined as falling under "similar retail food establishments."

In one camp, 80 national, state and local health organizations and experts, including the American Heart Association, American Academy of Pediatrics, Center for Science in the Public Interest, American Public Health Association, and National PTA, filed comments strongly objecting to several proposals that they say do not comply with the labeling law that was passed as part of national healthcare legislation in March 2010.

Specifically, they object to exempting foods sold in movie theaters, casinos, bowling alleys, stadiums, hotels, airlines, cafes, delis and foodservice areas in grocery and convenience stores and the like, which they maintain fall under the law's intended definition of "similar retail food establishments." They argue that exempting non-restaurant food venues is discriminatory against restaurants and would result in "significantly" reducing the number of venues providing calorie labeling to their customers, thus undermining the legislation's intention.

These groups also object to a proposal to exclude alcoholic beverages, on grounds that these beverages were also included in the legislation, and important to cover because they are high in non-nutritious calories. Further, they object to a proposal that vending machine owners be allowed to post calories/nutrition on a sign next to machines, citing the law's intention that this information be posted next to each item in a machine.

Not surprisingly, the National Restaurant Association concurs that the FDA should employ the broader definition of "similar retail food establishments" and "restaurant-like" operations within the scope of venues that must comply with menu labeling.

The restaurant association maintains that any establishment that sells food intended for immediate consumption, on- or off-premise, should be subject to the law, including supermarket delis, bakeries and prepared food departments, convenience chains with foodservice operations, food courts, bakeries, lunch wagons, airlines/transportation carriers, and other venues.

Also not surprisingly, the National Grocers Association (NGA) is strongly supporting a definition that would make menu labeling apply only to establishments whose primary business activity is the sale of restaurant or restaurant-type food to consumers, which would effectively exclude grocery stores.

NGA argues that most of the foods sold by grocery stores already adhere to nutrition labeling regulations, and that making grocers comply to menu labeling would be very costly and affect only a small portion of food sold in such stores -- thus not providing consumers with any substantial benefit. NGA also maintains that independent and co-op grocers would be unduly burdened by these costs, since a store would have to comply, even if independently owned, if it operates under a retail banner name that spans 20 or more independents.

The Administration intends to finalize the menu/vending labeling rules by the end of the year. The menu rules are expected to go into effect in mid-2012 and the vending rules by the end of 2012.