by Marion Nestle

Currently browsing posts about: Calorie-labeling

May 24 2011

Do you want calories listed for alcoholic drinks? Tell FDA by July 5

In April, the FDA released proposed rules for listing calories on menu labels (see previous post).  One surprising omission was an exemption for alcoholic beverages.  The surprise was that FDA had included alcoholic beverages in earlier versions.

The FDA’s reason for omitting alcohol is that these drinks are regulated by the Treasury Department, which proposed rules for calories on the labels of such drinks.  Yes it did, but that was at least four years ago and Treasury has done nothing since.  And Treasury has never said a word about menu boards.

Jurisdiction cannot be the real reason.  FDA does not regulate meat and poultry (USDA does) but its proposed regulations cover those foods.

If you think the FDA should require restaurants to display calories for alcoholic beverages, now is the time to say so.

I think consumers’ right to know is a sufficient reason for demanding calorie labeling on alcoholic beverages, but if you want more, the Marin Institute  lists useful talking points.

  • Alcoholic beverages contain calories and few nutrients.
  • It is difficult for drinkers to calculate the number of calories contained in a specific alcoholic beverage on their own.
  • Congress did not explicitly exclude alcoholic beverages from food labeling requirements.
  • The FDA has jurisdiction over the regulation of alcoholic beverages for health purposes.
  • The TTB [Treasury Department agency] continually fails to act regarding the labeling of alcoholic beverages.
  • Exempting small alcohol producers can remove burden of obtaining nutritional information.

If you are convinced by these arguments, or have others of your own, be sure to share them with FDA.  Do it right away.  The deadline is July 5.

Apr 2 2011

FDA finally does proposed rules for calorie labeling

Federal agencies love releasing potentially controversial proposals on Friday afternoons when reporters and everyone else is heading for the weekend. So that’s when the FDA released its week-late proposed rules for calorie labeling in restaurants.   There are two sets of proposed rules, one for restaurants, and one for vending machines.

Most of the proposed rules are pretty much as expected. They will apply to restaurants and fast-food places, bakeries, groceries, convenience stores, and coffee shops that are part of chains with more than 20 locations nationwide.  They also will apply to vending machines from companies with more than 20.

But here’s an eyebrow-raiser. The rules will not apply to movie theaters, airplanes, bowling alleys, and other establishments whose primary purpose is not to sell food. Uh oh. Food is sold everywhere these days as anyone who has been to a drug store lately can attest.

An exemption for movie theaters seems like a bizarre oversight. If ever there was a place where calorie labeling might be useful, try movie theater supersized sodas, popcorn, and candy.

In FDA-speak, an outlet is defined as primarily in the food business if it says it is, or if more than half its floor space is used to sell food. I can’t wait to see those drug stores getting out their tape measures.

Fortunately, these are proposed rules and you are more than welcome to comment on whether you think these exempted places should be required to opt in (I vote yes).  The FDA press release in the link above gives information about how to comment.  Note that there are two codes, one for restaurants and one for vending machines.

A couple of other points caught my eye:

Ranges: “Calories for variable menu items, such as combination meals, would be displayed in ranges. An example of a combination meal could be a choice of sandwich, side dish and beverage.”

Like how? Chipotle, for example, is happy to post calories in absurdly large ranges (200 to 800, for example). Do such places get to keep doing this?

Preemption of state and local laws: these rules will take precedent except that “State and local governments can establish nutrition labeling requirements for establishments not covered by the new law or regulations.”

Does this mean like movie theaters?

Alcohol: the rules do not apply to alcohol beverages because FDA does not regulate alcohol.  Treasury does (go figure).

Take every opportunity to comment!  The comment period opens April 6.

Here are some press accounts of the proposed rules:

Lyndsey Layton in the Washington Post (I’m quoted)

William Neuman in the New York Times deals with the preemption issue.

But local governments would be free to create laws for establishments that were left outside the federal rules.  New York City’s labeling law already requires movie theater chains to post calorie information. It also requires calorie labeling for alcoholic beverages listed on menus at restaurant chains.

Jan 26 2011

FDA withdraws menu labeling guidance. Will work on rules instead.

The FDA announces that it is immediately withdrawing its guidance to the food industry issued in August about how companies should do menu labeling. It will start formal rulemaking instead.  Try some FDA-speak:

As stated in the draft guidance, certain provisions of section 4205 of the Affordable Care Act became requirements immediately upon enactment of the law. FDA also stated that it anticipated issuing the final guidance and enforcement policy in December 2010.FDA received many comments on the draft guidance and on a public docket which FDA opened to solicit comment.

Based, in part, on these comments, FDA now intends to complete the notice and comment rulemaking process for section 4205 before initiating enforcement activities and will not be publishing a final guidance on menu labeling at this time. FDA is required to issue proposed regulations to carry out provisions of section 4205 no later than March 23, 2011. FDA intends to meet this statutory deadline.

FDA believes that the expeditious completion of the rulemaking process for section 4205 will minimize uncertainty and confusion among all interested parties. This approach to implementing section 4205 will most rapidly lead to full and consistent availability of the newly required nutrition information for consumers.

I’m not sure how to translate this.  I think it means that companies currently posting calories should continue to do so.

The FDA still needs time to work out some of the sticky details—calorie ranges like the ones used by Chipotle, for example.  It intends to meet the legislated deadline for issuing rules a year from now.  States and local communities currently requiring calorie labeling should continue to do so but should off on enforcement until then. 

Let’s not hurry these things.

Unsurprisingly, the restaurant industry “supports this approach.”  As The Packer put it, “Don’t sweat menu labeling just yet. Thise just in from the FDA…”

Patience is a virtue.  This willl happen.   Eventually.

Nov 6 2010

Nutrition labeling of wine, beer, and spirits: a regulatory morass

My monthly (first Sunday) San Francisco Chronicle column deals with the quite astonishingly complex and consumer unfriendly rules for labeling alcohol beverages, in answer to this question:

Q: I like to read nutritional information on the foods and beverages I consume. Why is there no such information on alcoholic beverages?

A: You want to know the alcohol, calories and ingredients in your wine, beer and liquor? Good luck.

Some alcohol drinks label some of this, but so inconsistently that it’s hard to make sense of it. The alcohol beverage industry prefers that you not think about what’s in their products. And Congress does not want alcohol marketed as nutritious.

Remember Prohibition? This was the era from 1920 to 1933 when alcohol could not be made, transported or sold in America. When it ended, Congress passed the Alcohol Administration Act of 1935, still in force. Recognizing the tax potential of alcohol beverages, Congress assigned their regulation to the Treasury Department. Treasury’s Alcohol and Tobacco Tax and Trade Bureau (TTB) sets rules for alcohol labels.

Absurd as it may seem, the labeling rules differ for wine, beer and distilled spirits. Substances to which people might be sensitive, such as sulfites and yellow No. 5, must be labeled, but TTB considers “ingredients” only to mean carbohydrate, protein and fat. If a label states calories, it must also state those ingredients, even though wine and hard liquor hardly have any (beer has some carbohydrate).

Listing other ingredients is voluntary and some winemakers are placing ingredient lists on labels – mostly grapes, but sometimes oak products.

Concentrate hard on what comes next. Labels of distilled spirits must state percent alcohol. They may list calories (but usually don’t). Wine label rules depend on percent alcohol. Wines containing 14 percent alcohol or more must display alcohol content; they may list calories (but don’t).

Wines from 7 to 14 percent must list alcohol and may list calories, unless they are labeled “light” or “table,” in which case they do not have to list either.

And get this: Wines with less than 7 percent alcohol are regulated by the Food and Drug Administration, not TTB. They must display Nutrition Facts labels with calories, nutrients and actual ingredients. They may disclose percent alcohol, and some do.

The 1935 act prohibited beer labels from disclosing alcohol content, lest manufacturers compete to sell “stronger” products, but the ban was successfully challenged in court.

Now beer labels may state percent alcohol, and when it helps sales, they do. The “energy-booster” beers associated with college drinking freely display alcohol content. Their labels also boast of caffeine, ginseng and taurine, ingredients regulated by the FDA as food additives.

Calories on beer labels are equally inconsistent. Regular beer may state calories. Light beer must do so.

I’m not done yet. If a beer is made from a grain other than malted barley, it is FDA-regulated. It must display Nutrition Facts; it may display alcohol.

Strangest of all, regulations differ from one state to another and state rules sometimes can supersede those of TTB, but not those of FDA.

Let’s credit the advocacy group Center for Science in the Public Interest with trying to fix this absurd, consumer-unfriendly situation. For decades, CSPI has petitioned Treasury to require disclosure of alcohol, calories and contents on alcohol labels.

In the early 2000s, CSPI and a coalition of 70 consumer and health groups petitioned TTB to require Alcohol Facts labels listing those and other relevant details. The alcohol industry countered with a proposal for voluntary labeling. At the height of the low-carbohydrate diet craze, makers of distilled spirits were eager to market them as “no-carb.”

In 2004, TTB issued guidance to industry on how to voluntarily label products with a Serving Facts panel. In 2007, in response to public comment, TTB finally proposed mandatory labeling rules for alcohol beverages. These called for a Serving Facts panel listing alcohol, calories, carbohydrate, protein and fat in all beverages under TTB jurisdiction.

But lest these requirements appear too onerous, TTB agreed to allow companies to leave percent alcohol off the Serving Facts panel, as long as it appeared someplace else on the label. In response, CSPI insisted that TTB delete the unnecessary fat and protein listings, include alcohol on the panel and list all actual ingredients, along with a warning statement about excess alcohol consumption.

To date, TTB has neither responded to CSPI nor issued final rules. Its proposals apparently got caught in election cycles and remain in limbo. CSPI, in cutting budgets, closed its alcohol policy center last year.

What to do? If you want to know calories, you mostly have to guess. Standard servings of wine (5 ounces), regular beer (12 ounces) and spirits (1.5 ounces) each provide about 100 alcohol calories. Carbohydrates add 20 or more to wine, and 50 or so to beer. Yes, those calories count, and more and larger drinks have more calories.

For unlabeled alcohol, sweeteners and other food additives, you just have to hope for the best. Or you can write your congressional representatives to get TTB moving on alcohol labeling.

This article appeared on page K – 4 of the San Francisco Chronicle

Aug 27 2010

FDA proposes rules for menu labeling

When President Obama signed the health reform bill last February, he also signed national menu labeling into law.  The FDA is now proposing rules for how calorie labeling will work in practice.  The proposed rules are posted on the FDA website and in the Federal Register.  The FDA is seeking public comment on its Draft guidance for industry.

The law says that restaurant chains with more than 20 units nationally must post by March 23, 2011:

  • The number of calories in each standard menu item “as usually prepared and offered for sale” (the calorie disclosure must be “clear and conspicuous” and “adjacent to” the name of the standard menu item)
  • A statement that puts the calorie information in the context of a total daily caloric intake, and
  • A statement regarding the availability of the written nutrition information.

In my previous posts and writings about calorie labeling, I’ve been concerned about several problems I’ve observed in the implementation of New York City’s calorie labeling program.  Here’s how the FDA proposes to address them.  FDA’s rules are in black italics.  Mine are in red:

Not displaying calories at all: a “menu” or “menu board” is “the primary writing of the restaurant or other similar retail food establishment from which a consumer makes an order selection. FDA considers primary writing to include all forms of primary writing, such as dessert menus, beverage menus, or other specialty type menus. I think this means that if a restaurant has a menu board, it has to post calories on the board.  If it only has menus, the calories have to be on the menus.

Displaying calories in absurdly precise numbers: calorie disclosure should be expressed in the nearest 5-calorie increments for menu items containing up to and including 50 calories, and in 10-calorie increments above 50 calories, except that amounts less than 5 calories may be expressed as zero. This is fine.  Measuring calories isn’t all that precise anyway.

Displaying absurdly large ranges of calories: FDA will not require posting calories of variable menu items and combination meals until FDA issues a final rule. FDA will provide recommended language in the proposed rule. Uh oh. The FDA must be having a hard time figuring out what to do about this one.

Displaying incorrect values for calories: a restaurant shall have a reasonable basis for its nutrient content disclosures, including nutrient databases, cookbooks, laboratory analyses, and other reasonable meansWhat “reasonable” means is debatable but this ought to work within a an error of 10% or so.  We will have to see how this one plays out.

If you want to weight in on these proposed rules, now is the time to comment. You can do this easily at Docket FDA-2010-N-0298.

Jun 6 2010

Calorie postings go personal?

My latest San Francisco Chronicle column is about calorie labeling going national and what the FDA is going to have to do to write regulations that make it work effectively.

While we are waiting for all that, how about what Burgerville is doing.  Burgerville, a fast-food chain in the Pacific Northwest, now does personalized calorie counts.  When you get your food, your receipt displays the calories for each item you ordered.  It also makes suggestions for ordering lower calorie items: “if you like the blueberry shake, you might consider getting a blueberry smoothie next time.”

Will doing something after-the-fact like this affect future food choices?  Researchers: get busy!

Apr 8 2010

Calorie labeling in the New England Journal

Yesterday, the New England Journal of Medicine published – online ahead of publication – my Perspective on “Health Care Reform in Action–Calorie Labeling Goes National.”

Never, in the more than 40 years since I published my first scientific paper (see note below), have I had an experience like this one.

Most of the time, academic publishing is a tortuous process, fraught with endless delays, rejections, nit-picking, and humiliation.

Not this time:

  • Friday, April 2: Perspective submitted
  • Monday, April 5: Perspective accepted, edited, set into page proofs, and queried
  • Tuesday, April 6: Queries dealt with and page proofs corrected
  • Wednesday, April 7: Figure added and Perspective published online and scheduled for print publication on May 27.

Whew!  Let’s hear it for electronic publishing.  I think I could get used to this.

Note: I know you are dying of curiosity about that first paper.  It appeared in 1968 when I was a budding (alas, never flowering) nucleic acid biochemist: Nestle M, Roberts WK.  Separation of ribonucleosides and ribonucleotides by a one-dimensional paper chromatographic system.  Analytical Biochemistry 1968;22:349-351.

Mar 23 2010

Calorie labeling to go national!

The impossibly impenetrable health care bill that just passed the House has one little piece of good news buried in it: national calorie labeling.

The provision covers chains with 20 outlets throughout the country and is supposed to go into effect in a year or so.  It also covers vending machines!  These are great steps.  Calorie labeling has two effects.  It educates anyone who is interested to look and think about it.  And it encourages chain restaurants to offer lower calorie options.  See note below giving the index to this section.

Cheers to Center for Science in the Public Interest, which has lobbied for years to get this into law.

Note:  Thanks to Ellen Fried for sending me this link to an Index to the menu labeling provision.

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