Food Retailers Testify on Behalf of 'Common Sense' Menu Labeling

If the Food and Drug Administration's new rules regulating menu boards are allowed to take effect, many supermarkets' nutrition initiatives could be voided.

That's according to at least one grocery retailer who testified this week on behalf of the Food Marketing Institute and National Grocers Association before the United States House of Representatives’ Energy and Commerce Committee’s Health Subcommittee to express the supermarket industry’s support for the Common Sense Nutrition Disclosure Act of 2015 (H.R. 2017), legislation addressing fundamental compliance challenges with the FDA's final rule that includes grocery stores in a regulation developed for chain restaurants.

“The supermarket industry constantly competes with each other to be at the forefront of providing customers with what they want and need, so our concerns with ‘menu labeling’ regulations are with FDA effectively mandating the standardization of foods that removes the creativity, passion and regional flavors our customers love," Israel O’Quinn, director of strategic initiatives for K-VA-T Food Stores Inc., offered in written testimony. “Part of the problem is that all the initiatives that supermarkets have already implemented, such as Facts Up Front, NuVal or electronic kiosks, to provide customers with more useful nutrition information would not be compliant under FDA’s rules."

Some K-VA-T stores have considered placing a sign, book or electronic kiosk listing calorie counts for all items above or at the end of the salad bar instead of putting a label on every ladle and tray, which are constantly moving and getting switched out, Quinn noted. "Based on what FMI has been told by FDA, this would not be considered compliant under FDA’s rules," he asserted. "We’ve also considered using scale-labels from our deli-area for grab-and-go items like sandwiches made from the deli early in the day, but with a FDA-mandated font size, the font-size would not be compliant without having to completely replace all of our scales and labels. To put it bluntly, this is going to be a very expensive endeavor.”

Complementing O’Quinn’s testimony, in a letter of support to the committee, FMI President and CEO Leslie Sarasin outlined, “FDA’s flawed interpretation of the chain restaurant menu labeling law imposes unclear, expansive and expensive requirements on grocery stores. This legislation would address several of these critical issues…and [allow] adequate time for regulated stakeholders to properly implement the law.”

Sarasin continued, “To be clear, grocery stores want to provide customers with nutrition information and have done so for a very long time, at least since the Nutrition Labeling and Education Act was enacted in 1992. This desire to respond to our customers extends to the instances in which there are menus or menu boards, and FMI will continue its efforts to work with FDA to identify alternatives for this provision of additional menu nutrition information in the context of a grocery store environment. But the lack of time, guidance, and flexibility by FDA compels us to seek the legislative process to address these critical, outstanding issues to minimize the significant economic impact and customer confusion this rule has created.”

The National Grocers Association also commended the House Energy and Commerce Subcommittee on Health, chaired by U.S. Rep. Joe Pitts (R-Pa.), for hearing testimony from industry experts on bipartisan legislation offered by U.S. Reps. Cathy McMorris Rodgers (R-Wash.) and Loretta Sanchez (D-Calif.).

"Independent supermarket operators are uniquely tied to their communities and have a deep understanding that consumer demands vary from community to community. Many prepared food items sold in their stores are not standardized, but rather tailored to the community, and recipes, even for the same item, may vary from store to store based on customer demand," said Peter J. Larkin, NGA's president and CEO. "Independent supermarket operators have long been committed to providing their customers with high quality service and a wide variety of information on the products sold in their stores." 

The legislation would scale back the FDA's final menu labeling rules, which were finalized in December 2014. Key components of the proposed legislation are:

• A clear definition of a menu board as the primary listing for the consumer.
• Protection for covered entities from frivolous lawsuits through private right of actions.
• Establishes a good faith threshold to ensure businesses aren't penalized for inadvertent human error.
• Provides flexibility to those establishments that carry unique items at only one location. 
• Clarifies that entities that derive 50 percent or less of their total sales from foods prepared on-site are not subject to the regulation. 
• Delays the effective date for at least two years after passage of the legislation. Currently, FDA's regulations go into effect on Dec. 1, 2015.