No more delays: Menu labeling goes into effect today
After numerous delays and prolonged campaigning from consumer advocacy groups, restaurants and retailers, the federal menu labeling law goes into effect today.
Created under guidelines set forth by the Affordable Care Act in 2010, the law requires grocers and restaurants with 20 or more locations to list calorie counts for their menu items, and is intended to offer a federal alternative to the state- and city-specific provisions that have cropped up across the country in recent years. The Obama administration published a final rule in December of 2014, but implementation was pushed back three times, most recently on May 4 last year — just one day before the law was set to take effect.
Some grocery retailers have maintained the Food and Drug Administration unfairly roped them into a regulation intended for restaurants, and compliance is unduly complicated and expensive. The law requires foodservice establishments to list calorie counts for each food offering prepared and sold in their stores. This is a difficult task for supermarkets, trade organizations claim, because they offer prepared foods in a variety of formats and at different points throughout the store. Grocers also frequently change their foodservice offerings, raising questions about how they should implement testing and labeling procedures.
In November, the FDA issued draft guidance that addressed some of the concerns grocers raised. Marketing materials like billboards and mailers would not qualify as menus, the agency noted, and thus won’t require calorie listings. To make it easier for retailers to list calorie counts at prepared food and beverage stations, the FDA allows establishments to list calories on a single sign within the department rather than next to every item on display.
Any hopes that the law would be delayed once again were quashed last August when FDA commissioner Scott Gottlieb issued a statement of support for the rule. The next month, the agency signed an agreement stating the law would not be delayed any longer, ending a lawsuit filed by consumer advocacy groups.
“In considering how and what information to make available, we have taken into account the significant variation in the ways Americans purchase foods — ranging from traditional restaurant menus to the growth in grab-and-go foods at grocery and convenience stores,” Gottlieb noted in the statement.
In February, a Republican-led Congress passed HR 772, an amendment to the federal menu labeling rule that would allow added flexibility on serving sizes and menu placement. But the bill seems unlikely to reach the Senate floor. According to the information firm GovTrack, the bill has just a 27% chance of getting passed.
Trying to make lemonade out of lemons
The Food Marketing Institute, which has opposed the law while also working to help retailers implement it, said it’s still not happy with the law, but that the rollout has gone smoothly for chain grocers.
“We are trying to make lemonade out of the lemons FDA presented — working to implement a law that was poorly designed for the businesses we represent and poses liability challenges at the state and local levels with regard to enforcement,” Jennifer Hatcher, FMI’s chief public policy officer and senior vice president of government relations said in a statement issued Friday. “That said, our members have exerted an extraordinary effort in analyzing and labeling hundreds and in some cases, more than 1,000 items, thus enabling customers to identify more clearly the wide array of healthy options available in a grocery store.”
The National Grocers Association echoed this sentiment, noting that the regulations would be among the costliest the supermarket industry faces, with an estimated $1 billion going towards testing, signage, employee training and other measures. The organization hopes additional legislation can address legal challenges and other pressing issues for the industry.
“Important regulatory fixes that would eliminate confusion and uncertainty in implementation are needed,” NGA spokeswoman Laura Strange said in a prepared statement emailed to Food Dive. “Additionally, there should be assurances to protect front line employees and stores from criminal penalties for simple, human error and shield businesses from frivolous lawsuits.”
Margo Wootan, director of nutrition policy with the Center for Science in the Public Interest, said she’s pleased with the law, calling it “a positive impact from a low-cost public policy.” She noted that increased transparency has become necessary now that eating out is a regular habit for consumers and not an occasional treat. According to the U.S. Department of Agriculture, people spend more than $800 billion a year on food at restaurants and other establishments — more than they do on food prepared in the home.
“Most Americans want to eat better, and they find it difficult, especially at restaurants, to do so,” Wootan told Food Dive. “Menu labeling just gives people a new tool to help them make their own choice about how many calories they want to eat.”
Does calorie labeling actually lead to consumers making healthier choices? The research is mixed. A study by researchers at New York University that looked at calorie labels in fast food restaurants concluded that as few as 8% of consumers were set to make healthier choices because of the initiative. Meanwhile, researchers examining menu labeling in Seattle, which went into effect in 2009, found that the percentage of restaurant goers who noticed and utilized calorie labeling in their food choices tripled.
Wootan said studies on menu labeling have been fairly limited in size, but federal labeling will likely allow for better data collection. She also noted that calorie labeling tends to spur restaurants and supermarkets to offer healthier dishes — something more and more consumers are demanding these days, she noted.
Since last year’s delay came at the eleventh hour, many grocers were already in full compliance a year ago, or at least close to it. Wootan, who has worked with retailers on the issue, said that most of the large chains implemented menu labeling months ago, and that today’s deadline is merely a formality.
“The top chain supermarkets have been ready to go,” she said. “They’ve known this is happening, they’ve had plenty of time to plan and have been very responsible.”
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