by Marion Nestle

Currently browsing posts about: Calorie-labeling

Aug 29 2017

Once more on menu labeling

It never stops, but at last there is a suggestion that the saga of long delays in menu labeling may possibly be coming to an end.  Scott Gottlieb, the new FDA Commissioner, announced:

We recognize our obligation to provide clear guidance so that restaurants and other establishments that are subject to these provisions have clarity and certainty as to how they can efficiently meet the new menu labeling requirements…We have issued detailed regulations addressing what information should be provided in menus at restaurant chains and other similar retail establishments, as well as when and how that information should be provided….I am pleased to announce that we will provide additional, practical guidance on the menu labeling requirements by the end of this year…These new policy steps should allow covered establishments to implement the requirements by next year’s compliance date.

Although Gottlieb does not say so directly, this could mean that the FDA intends to put national menu labeling into effect in May 2018—the current, long-delayed deadline.

If this is what he is saying, it must mean that the big food chains—most of which already have menu labeling in place—are tired of the endless delays and just want the playing field leveled once and for all.

Let’s hope.

Note: For a brief but useful summary of the legal battles, see Dan Flynn’s analysis in Food Safety News.

Aug 22 2017

Menu Labeling: the saga goes on and on

Listing calories in chain restaurants, you may recall, was authorized by Congress as part of the Affordable Care Act in 2010.

That was an astonishing seven years ago.  In the interim, the FDA wrote regulations, took public comments, rewrote regulations, scheduled them for implementation in 2017, and delayed them until 2018.

New York City, you might also recall, instituted menu labeling in 2008.  The world did not come to an end.

The City said it would go ahead and implement the federal version of the rules as originally scheduled.

The National Association of Convenience Stores objected (the industry has opposed menu labeling from the get go) and went to court to stop the City from doing this.

The FDA—a public health agency, mind you—is supporting industry in this suit.

Even if the City’s characterization of the FDA’s posture as a delay were correct, which it
is not, the City cannot rely upon a supposed void created by the agency to justify its position. As the Supreme Court has made clear, localities may not use the purported “failure of . . . federal officials affirmatively to exercise their full authority” as an excuse to “use their police power to enact a regulation” in a regulatory realm that is otherwise expressly preempted…[New York] may not choose to take its own path in the face of this clear expression of Congressional purpose.

The New York Times wrote about this, pointing out that since most chain restaurants are already in compliance with the law,” what’s the big deal?

I’m quoted:

Marion Nestle, a professor of nutrition and public health at New York University, suggested that the latest delay was part of an industry push under the Trump administration to eliminate the federal menu labeling requirement altogether.

The longer the delay, the more the industry can fight it.

This is a consumer-unfriendly move on the FDA’s part, and not a good sign of what is in store for food politicies under FDA’s jurisdiction.

Jul 24 2017

The food industry vs. menu labeling: the saga continues

Remember menu labeling?  The idea started in New York City in 2008.  Here is one of my early posts on it.  My point in mentioning this: if you care about such things, menu labeling is useful, fun, and effective if you pay attention to it.

Despite a lot of research suggesting otherwise, menu labeling must work.  How else to explain industry’s ferocious and unrelenting opposition to it?

The latest is a lawsuit filed by the Food Marketing Institute and the National Association of Convenience Stores against New York City, which announced that it plans to enforce the regulations it has had in effect for nine years—even though the FDA has delayed national implementation once again until 2018.

To get some idea of what fast-food places are upset about, it helps to check in with the American Pizza Community, the friendly-sounding, but actually highly aggressive trade association for fast-food pizza places.

Here, for example, is its congratulatory statement to the FDA for delaying compliance with the law for another year:

The American Pizza Community welcomes the important step by the Food and Drug Administration toward applying common sense to federal menu labeling regulations…The previous approach threatened to impose excessive burdens on thousands of small businesses without achieving meaningful improvements in educating consumers. 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.  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.

By “support,” the pizza folks mean the “Common Sense Nutrition Disclosure Act of 2017.

Instead of requiring calories to be posted next to the menu item, this bill would allow nutrition information to be available “solely by a remote-access menu (e.g., an Internet menu) for food establishments where the majority of orders are placed by customers who are off-premises.”

Also, “an establishment’s nutrient content disclosures may vary from actual nutrient content if the disclosures comply with current standards for reasonable basis.

The pizza industry has the Wall Street Journal on its side.

The Food and Drug Administration can’t possibly fulfill all of the responsibilities it claims to have, and here’s one way the Trump Administration can set better priorities: Direct the agency to end its effort to inform Americans that pizza contains calories.

I guess the hope is that if they delay long enough, menu labeling will quietly disappear.

CSPI, however, has other ideas.  It filed a lawsuit to force the FDA to implement the regulations.

This lawsuit asserts that the delay of the menu labeling requirement—published without prior notice or an opportunity for comment, one day before the menu labeling rule was supposed to take effect—is illegal and must be vacated.  Since the regulated industry was ready to comply before the delay, it can promptly comply with the menu labeling rule once reinstated and, thus, begin to provide this important health information to the public without delay, according to the complaint.

Recall that menu labeling was authorized by Congress as part of the Affordable Care Act in 2010.  No wonder CSPI wants the rules implemented right away.

The ACA is still with us—so far.

Jun 20 2017

The administration’s war on food: summary by the Environmental Working Group

Scott Faber, Vice President of Government Affairs for the Environmental Working Group summarizes Trump’s Full-Scale War on Food.  Since taking office, he writes, Trump has:

  • Proposed to cut food safety funding for the Food and Drug Administration by $117 million.
  • Proposed to cut funding for the Supplemental Nutrition Assistance Program, or SNAP, by $193 billion – a 25 percent cut – and cut international food aid by $2 billion.
  • Delayed new labeling rules for menus and packaged foods that would give consumers more information about calories and added sugars, and so far failed to issue a draft rule to implement a new law on disclosing genetically modified ingredients in food.
  • Weakened new rules designed to drive junk food out of U.S. schools.
  • Proposed to eliminate several Department of Agriculture programs that helped farmers sell directly to local consumers.
  • Proposed to eliminate funding for an entire division of the Centers for Disease Control and Prevention that works to reduce obesity.
  • Withdrawn new rules to protect drinking water supplies from polluters and proposed cutting the Environmental Protection Agency’s budget by 31 percent.
  • Proposed to suspended two of the largest farmland stewardship programs and mothball others.
  • Postponed new rules designed to strengthen animal welfare standards on organic farms and proposed to eliminate funding for programs that help farmers switch to organic farming.
  • Reversed a ban on a pesticide linked to brain damage in kids and proposed cutting EPA funding for pesticide review programs by 20 percent.
  • Punted on new rules to protect farmworkers from pesticides, and proposed to eliminate a program to train migrant and seasonal farmworkers.
  • Mothballed new voluntary sodium guidelines that would drive reformulation of foods.
  • Called for so-called regulatory “reforms” that would block agencies like the FDA and USDA from adopting new rules designed to keep food safe, update food labels or provide students healthier meal options in schools.

This is an impressive list, calling for serious resistance.

How?  That’s the question….

 

May 1 2017

Government’s food regressions: FDA and USDA

It’s pretty depressing to watch what’s happening to the gains in food and nutrition policy so hard won in the last few years.

Nothing but bad news:

Menu labeling:  The FDA is submitting interim final rules, a tactic to delay implementation of menu labeling, which was supposed to start on May 5.  Why?  The National Association of Convenience Stores and the National Grocers Association filed a petition asking for the delay.   Pizza sellers have been lobbying like mad to avoid having to post calories.

Food labels (calories, added sugars): As the Washington Post puts it, the food industry is counting on the current administration to back off on anything that might help us all make better food choices.  At least 17 food industry groups have asked for a delay in the compliance date for new food labels—for three years.  Why?  They are a burden to industry.  The soon-to-be FDA Commissioner, Scott Gottlieb, said this about food labels:

As a general matter, I support providing clear, accurate, and understandable information to American consumers to help inform healthy dietary choices,” Gottlieb wrote, according to documents obtained by The Washington Post. “ … However, I am mindful of the unique challenges that developing and communicating such information can pose, particularly on small, independent businesses.”

Definition of dietary fiber: The American Bakers Association wants the FDA to take back its new, stricter definition of dietary fiber, (it excludes synthetic fiber) due to go into effect in July 2018.

School meals: The USDA says it is about to announce new school meal “flexibility” (translation: rollback of nutrition standards).

The score: Big business 4, public health 0

Happy May Day.

For further reading:

Addition: It gets worse.  Politico reports that the congressional spending bill:

Contains a rider blocking funds from being used to work on “any regulations applicable to food manufacturers for population-wide sodium reduction actions or to develop, issue, promote or advance final guidance applicable to food manufacturers for long term population-wide sodium reduction actions until the date on which a dietary reference intake report with respect to sodium is completed.”

Politico also points out that the previous draft of the appropriation bill merely encouraged FDA to delay its salt reduction proposal until the reference intake report is updated (this, by the way, will take years).

More documents:

Nov 29 2016

FDA clarifies what’s happening with menu labeling

Remember menu labeling—the amazing number of calories posted on your favorite items at chain restaurants?  For those of you who don’t live in New York City or other places with calorie labels, they are supposedly coming soon to places near you.

Here’s FDA-speak for what is happening:

In December 2015, section 747 of the 2016 Omnibus Bill prohibited FDA from using appropriated funding to implement, administer, or enforce the menu labeling requirements until one year after FDA finalized the draft September 2015 menu labeling guidance. While FDA originally issued a statement indicating the Omnibus Bill extended the compliance date, FDA is clarifying that the compliance date remains December 1, 2016, but, consistent with the Omnibus Bill, FDA will not begin enforcing the final rule until May 5, 2017, which is one year after the date that the Notice of Availability for the final guidance published in the Federal Register.  For more information see: Menu and Vending Machines Labeling Requirements.

Got that?

Really, these are worth waiting for.

Did you really want to eat that 650-calorie muffin?

May 2 2016

At last! Menu labels in 2017!

Wonder of wonders, the FDA at last has issued its Final Guidance on Menu Labeling to go into effect a year from now.

Why astonishment?  New York City has had menu labeling since 2008. The national process started in 2010.

Here’s the chronology:

YEAR DATE ACTION
2010 March 23 President Obama signs the Affordable Care Act which includes a provision requiring chain retail food establishments with 20 or more locations to provide calorie information for standard menu items.
July 7 FDA publishes Federal Register notice soliciting comments and suggestions
Aug 25 FDA requests comments on “Draft Guidance for Industry: Questions and Answers Regarding Implementation of the Menu Labeling.”
2011 Jan 25 FDA withdraws draft implementation guidance; announces intent to exercise enforcement discretion until rulemaking process is complete; requests comments.
April 6 FDA issues proposed rule.
May 24 FDA issues document correcting errors in proposed rules; extends comment period.
July 5 FDA issues notice of proposed rulemaking.
2014 Dec 1 FDA issues final rule.
2016 April FDA issues guidance for industry.

Happily, the rules will cover:

bakeries, cafeterias, coffee shops, convenience stores, delicatessens, food service facilities and concession stands located within entertainment venues (such as amusement parks, bowling alleys, and movie theatres), food service vendors (such as ice cream shops and mall cookie counters), food takeout or delivery establishments (such as pizza takeout and delivery establishments), grocery stores, retail confectionary stores, superstores, quick service restaurants and table service restaurants.

Center for Science in the Public Interest has produced celebratory graphics:

It’s too bad we have to wait yet another year, but menu labels are worth the wait.

The FDA documents:

Jul 10 2015

FDA caves in to lobbying pressures, delays menu labeling

Yesterday, the FDA announced a delay in implementation of menu labeling until December 1, 2016.

Since the FDA issued the menu labeling final rule on December 1, 2014, the agency has had extensive dialogue with chain restaurants, covered grocery stores and other covered businesses, and answered numerous questions on how the rule can be implemented in specific situations. Industry, trade and other associations, including the grocery industry, have asked for an additional year to comply with the menu labeling final rule, beyond the original December 2015 compliance date. The FDA agrees additional time is necessary for the agency to provide further clarifying guidance to help facilitate efficient compliance across all covered businesses and for covered establishments to come into compliance with the final rule. The FDA is extending the compliance date for the menu labeling rule to December 1, 2016, for those covered by the rule.

Here are the relevant Federal Register notices:

Let’s be clear about what’s going on here.  New York City, where I live, has had menu labeling since 2008.  The world has not come to an end.

The Affordable Care Act made menu labeling go national in 2010.  The Supreme Court affirmed that law in 2012.

The seemingly endless delays look like successful lobbying at the expense of consumers and public health.

The New York Times account quotes me on this point:

This is a huge victory for the restaurant lobbyists,” said Marion Nestle, a professor in the department of nutrition, food studies and public health at New York University. “Food companies must be hoping that if they can delay menu labeling long enough, it will just go away.

The pizza industry, one of the chief lobbying groups on this issue, is pleased by the decision.  Lynn Liddle, Chair of the American Pizza Community sent out this statement yesterday:

FDA’s delay confirms both the serious deficiencies in the final rules and the urgent need for enactment of the bipartisan Common Sense Nutrition Disclosure Act (H.R. 2017).  Unfortunately, FDA proceeded with an approach to final rules that impose significant compliance costs without achieving any meaningful improvements in consumer education.  After years of uncertainty, FDA still has not addressed basic questions regarding implementation.  The American Pizza Community looks forward to continuing to work with Members of Congress to secure timely passage of the Common Sense Nutrition Disclosure Act.

If you can’t get federal agencies to back off on public health, go right to Congress.

The pizza industry had already succeeded in getting this provision in the House Agricultural Appropriations bill:

SEC. 744. None of the funds made available by this Act may be used to implement, administer, or enforce the final rule entitled ‘‘Food Labeling; Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments’’ published by the Food and Drug Administration in the Federal Register on December 1, 24 2014 (79 Fed. Reg. 71156 et seq.) until the later of— (1) December 1, 2016; or (2) the date that is one year after the date on which the Secretary of Health and Human Services publishes Level 1 guidance with respect to nutrition labeling of standard menu items in restaurants and similar retail food establishments.

Although this act is not yet passed and it’s not clear whether this provision would have survived, the FDA got the message (or maybe the White House made sure that it did?).

Menu labels inform the public about the number of calories in the foods they are buying.

The ferocity of lobbying on this idea suggests that restaurant companies would rather you did not have this information.

The FDA, alas, is not helping much on this one.

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