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The latest in menu labeling

Just when it looks like menu labeling is settled and ready to go into effect, there is a new bill, movement, sneeze or other change from one end of this challenge to the next.

March 25, 2016 by Betsy Craig — CEO and Founder, MenuTrinfo

It seems to me that I may be writing these updates for the next year at this rate. Just when it looks like menu labeling is settled and ready to go into effect, there is a new bill, movement, sneeze or other change from one end of this challenge to the next. 

We have even gone so far as to see our first ever admission directly from the Food and Drug Administration that they were not current in their knowledge compared to us here at MenuTrinfo. Flattering but insanely frustrating nonetheless. 

To get you current, I must first bring you back to quickly recap how we got to today:

• March 23, 2010 — Affordable Care Act (known as Obamacare) passed. The passed law included section No. 4205 — menu labeling regulations and rules to be determined by the FDA. That began a four-plus-year wait for any form of guidance as the FDA left comments open for the public to weigh in with their thoughts, opinions, ideas, and concerns. 
   
• Nov. 25, 2014 —The first guidance document from the FDA was released. A mere 395 pages spelling out who, what, how, by when, and what will happen if … was documented. Although it answered a great deal of questions, it also stirred up a whole bunch more.
   
• Dec. 1, 2014 — Guidance draft No. 2 is released. It's smaller, more condensed and clearer, but also stirring the pot of confusion soup. This draft was only 105 pages in length but deep and wide in content. The date was set for compliance as of Dec. 1, 2015.
   
• July 9, 2015 — Compliance date pushed out to Dec. 1, 2016.
   
• Sept. 11, 2015 — The FDA releases "Draft Guidance for Industry: A Labeling Guide for Restaurants and Retail Establishments Selling Away-From-Home Foods – Part II."
   
• April 23, 2015 — H.R. 2017, called the "Common Sense Nutrition Disclosure Act of 2015," was introduced in the House. This bill called for a clear path to exclude convenience and grocery stores from the regulations. Now new "grocereants" (restaurants within a grocery store) would not be held to the same standard. The pans started flying in the restaurant sector when this was discovered. The National Restaurant Association voiced their deep concerns.
   
• April 28, 2015 and June 4, 2015 — The National Restaurant Association sent a letter to Congress saying the only part of this bill they objected to was the "50 percent revenue exemption in HR 2017," according to Congresswoman Cathy McMorris Rodgers in the House Energy and Commerce Subcommittee on Health, as recorded on June 4, 2015. Note: The 50-percent rule was removed in the final copy of the bill voted on and passed in the House on Feb. 12, 2016.
   
• Feb. 10, 2016 — H.R. 2017 came in front of the House for discussion to be voted on by the week's end. Also on this date, the White House released a statement officially from the Executive Office of the President clearly stating that, "The Administration opposes H.R. 2017…," sending a clear message that if this president gets this bill across his desk the likelihood of it becoming law is slim. It does still need to pass the Senate first, but this is a food fight at its best.
   
• March 9, 2016 — The FDA released a statement on March 9 that the menu labeling deadline will no longer be Dec. 1, 2016. It is now dependent on when they release the final version of the draft guidance put out in September of 2015. This is due to a rider in the omnibus bill that was passed at the end of 2015, but it has taken this long to straighten out the language and determine what it really meant.  

There are a few key points in H.R. 2017 that would in fact make it easier for the operator, but there are also some much stretched opinions. 

Pro

For pizzerias, there would be more flexibility on the sizing of the slices they serve. Those that serve other then a traditional pizza triangle would benefit from the loosening of the requirement.

There would be a more forgiving area for variance on the final nutritional numbers. The current FDA guidance docs allow for limited variance in the numbers, and do not have defined allowable differences like packaged goods. This new bill would give a little leeway closer to what we do currently have in, say, a jar of salsa.

Finally, the biggest win in this law the FDA did not put into draft docs was pertaining to the actual menu boards for places that have most of their ordering done online. Those types of establishments can forgo all of the menu-board labeling in exchange for providing the information online or electronically for those diners at the point-of-purchase.

Con

There is confusion for the consumer, with some locations having calories on a menu board while others will only have it online. The method to obtain the nutritionals is looser in H.R. 2017, and that could lead to more inaccurate information. The delay is hurting the entire industry as companies begin this process then get told to wait that the date is going to extend out — again. 

As it stands now, menu labeling will be effective within the next year. If H.R. 2017 is passed, it will push that date out further. However, here is the main "food for thought" as I see it: Based on our clients, today there are 15 different rules and laws in place for menu labeling across the country (see picture courtesy of the CSPI). Having to take steps back and comply to rules and laws in all these different locations is difficult and troublesome but doable. It means more work for the MenuTrinfo culinary nutritionists, but for restaurants the costs continue to increase. Federal menu labeling standards will find their way to the industry eventually, but the customer demand for transparency when they dine out will just keep getting stronger.