Trump Administration Delays Obamacare Calorie Rule

FDA: 'Fundamental questions and concerns' with final regulation

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May 3, 2017

The Trump administration is delaying an onerous Obamacare regulation that left confusion as to what a menu is.

The Obama rule that mandated calorie labeling in restaurants and groceries was set to take effect on Friday. After complaints from small businesses, the Food and Drug Administration announced Monday it was delaying compliance for one year and will work to add flexibility to the regulation.

"The FDA has made the right decision to delay a rule that would have essentially dictated how every food service establishment in America with more than 20 locations—restaurants, grocery stores, movie theaters, and more—writes and displays their menus," said Health and Human Services Secretary Tom Price.

Price said the regulation, which originally had an effective date of December 2015 but was delayed twice by the Obama administration, was "unwise and unhelpful."

"Under President Trump, our department will focus on promoting public health in ways that work for American consumers," he said. "Toward that end, the FDA is asking for feedback about how to make the Menu Labeling Rule more flexible and less burdensome while still providing useful information to consumers. We look forward to working with all involved to find the right balance."

The regulation included a 171-word definition of "menu" and, as written, would have forced pizza chains and restaurants to list calorie counts on advertisements. The rule was criticized as "impossible to comply" with and carried criminal penalties for "misbranding" food with the wrong calorie counts.

The FDA addressed these concerns in its interim final rule the agency released this week.

"The continued, fundamental questions and concerns with the final rule suggest that critical implementation issues, including some related to scope, may not have been fully understood and the agency does not want to proceed if we do not have all of the relevant facts on these matters," the agency said.

The FDA added that retailers have "raised concerns about how the rule lacks flexibility," and the agency received questions on "how to distinguish a menu" from advertisements.

"We do not want to proceed with a rule that might turn out to be too inflexible to support innovation in delivering information to consumers," the FDA said.

The FDA is seeking additional public comments on the rule for the next 60 days and is specifically looking for comments on how to make the regulation easier to comply for buffets, and to make it easier to define a menu.

The American Pizza Community, a coalition of pizza chains representing Domino's, Papa John's, and others, praised the Trump administration for working to add "common sense" to the regulation.

"The American Pizza Community commends the administration's decision to extend the compliance date to May 7, 2018 and its request to collect comments for reducing the regulatory burden and increasing flexibility in implementation methods," the group said in a statement.

"We support menu labeling and look forward to working with policy makers to implement a permanent solution that provides consumers with information and enables small business owners to comply with flexibility while continuing to thrive and create jobs," the group added.

The Food Marketing Institute, which represents 40,000 retail grocery stores including Giant, Safeway, Harris Teeter, Whole Foods, Wegmans, and Weis Markets, also praised the move.

"We appreciate FDA and the Trump administration's thoughtful approach to taking more time to review the Food and Drug Administration’s proposed restaurant 'menu labeling' rule, which allows for an opportunity to resolve some of the tremendous challenges associated with its application in a grocery store environment," said Leslie G. Sarasin, FMI's president and CEO.

"The Obama administration deemed this rule to be the third most burdensome of FY2010, with an estimate of more than 14.5 million hours necessary for compliance—an estimate now proven by the industry to be very low," she said.

FMI is seeking changes to make compliance easier, such as a central menu board for a salad bar and regulatory fixes to allow groceries to continue serving locally sourced foods under the rules.

"These are sensible modifications that can easily be made and that will allow grocery stores to provide information to customers in a more efficient and accurate, less costly manner," Sarasin said. "It is wholly appropriate and necessary for FDA and the Trump administration to review this rule and its corresponding burdens using the common sense and logic that has been absent in the process thus far."

Published under: HHS , Obamacare