Pizza chains, groceries, and convenience stores are criticizing the Food and Drug Administration for failing to fix their concerns about an Obamacare regulation that mandates calorie counts on menus.
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FDA commissioner Scott Gottlieb said the guidance is meant to help businesses implement the rule in a "practical, efficient and sustainable" way. However, the guidance did not address core concerns about criminal penalties for "misbranding" food, several groups representing food manufacturers said.
"While we commend Commissioner Scott Gottlieb for seemingly giving it the ‘old college try,' the Agency's guidance continues to leave unanswered longstanding questions about some of the rule's most complex and burdensome provisions," said Tim McIntyre, chair of the American Pizza Community, which represents chains including Domino's, Papa John's, and Little Caesars.
McIntyre said the FDA's Center for Food Safety and Applied Nutrition (CFSAN), which crafted the guidance, continues to "substitute ideology in place of an accurate accounting of the rule's costs and benefits."
"This so-called ‘revised' guidance continues to prohibit pizza delivery establishments that receive more than 90 percent of customer orders over the phone and online from complying by labeling the menus their consumers access via web browser or smartphone app," he said. "If CSFAN's staff truly wanted to give consumers access to accurate nutritional information, they should have accounted for the places where most consumers in our business actually make their food selections."
McIntyre added that the guidance also did not address the "absurd criminal and civil penalties" written into the Obamacare regulation. Violations of the rule can carry up to one year in prison or fines of $1,000.
The National Association of Convenience Stores (NACS) said the guidance cannot fix the "one-size-fits-none mess" regulation.
"The guidelines do nothing to pull down the barriers to compliance that have retailers facing extraordinary costs, uncertain enforcement and frivolous lawsuits," said Lyle Beckwith, a senior vice president of the group. "The FDA admitted during a conference call with stakeholders that only Congress can now address the wide range of egregious problems inadequately clarified or addressed in the regulation, which include private causes of actions."
Beckwith said the guidance failed to address confusion for convenience stores having to comply with the rule. He called labeling every salad bar item "impractical," and said the guidance does not take into account the "natural variation in calorie counts."
"In short, our conclusion in the wake of FDA's effort at ‘guidance' is the same as before: compliance with these rules will be unduly burdensome for all our members," Beckwith said.
The Food Marketing Institute, which represents 33,000 retail food stores and groceries, also objected to the guidance
"While Food Marketing Institute (FMI) appreciates Commissioner Gottlieb's acknowledgement of the need for flexibility with the agency's final ‘menu labeling' rule, FDA's draft guidance demonstrates the limits of the agency's ability to fix substantive problems without Congressional action," said Robert Rosado, the senior director of food and health policy of organization.
All three organizations called on Congress to pass the Common Sense Nutrition Disclosure Act of 2017, legislation that would change the regulation to allow greater flexibility to comply with the rule.
The regulation requires food establishments with over 20 or more stores to label all of its food with calorie counts.
Pizza chains have objected to not being able to comply online, since there can be up to a billion combinations of toppings. The vast majority of orders already occur remotely, and companies such as Domino's have already implemented online calorie calculators for consumers.
The bipartisan legislation, sponsored by House Republican Conference chairwoman Cathy McMorris Rodgers (Wash.), addresses this part of the rule by allowing businesses where the majority of their orders are placed electronically the ability to comply with the regulation by posting calories online. The bill also fixes the definition of menu to only apply to the primary listing—and not advertisements—and would give businesses 90 days to correct any violation. The Obama administration's final guidance was unable to define menu in less than 170 words, and was interpreted to apply to advertisements, and flyers on gas pumps.
The Trump administration's latest guidance has removed the Obama administration's menu definition. However, the guidance is non-binding.
"The bipartisan Common Sense Nutrition Disclosure Act in Congress is the only solution to FDA's poorly crafted, inflexible, and disappointingly ideological rule, and we will continue to aggressively work with Members of Congress on both sides of the aisle to ensure its passage," said McIntyre. "We need to get the law fixed, and fixed right, to the benefit of all of franchisees, employees, customers, and suppliers."
FMI also supports the legislation, arguing that the bill would allow groceries to be in compliance for making a "good-faith" effort to comply, and give stores the flexibility to use one prominent menu for salad bars, rather than labeling every item as it changes.
"This relief remains necessary to provide the certainty and enforcement protections to allow food retailers the confidence to fulfill our shared commitment to complete implementation once and for all," Rosado said.