Currently browsing posts about: Calorie-labeling

On May 4, the FDA gave food companies a gift when it announced a 1.5-year extension of compliance dates for the Nutrition Facts label.

We are taking this action because, after careful consideration, we have determined that additional time would help ensure that all manufacturers covered by the final rules have guidance from FDA to address, for example, certain technical questions we received after publication of the final rules, and that they have sufficient time to complete and print updated Nutrition Facts labels for their products before they are expected to be in compliance with the final rules.

On its website, the FDA now says:

The FDA extended the compliance dates for the Nutrition Facts and Supplement Facts label final rule and the Serving Size final rule, from July 26, 2018 to January 1, 2020, for manufacturers with $10 million or more in annual food sales. Manufacturers with less than $10 million in annual food sales would receive an extra year to comply – until January 1, 2021.

CSPI, understandably, is miffed:

The reality is that the labels are already on more than 29,000 products on grocery shelves, and more appear weekly.  So today’s announcement should be a call to action for companies to provide consumers the information they want now, rather than waiting for the legal deadline.

Remember menu labeling?  In 2010, Congress said fast food places should reveal calories on their menus (New York City required this in 2008).

Food companies fought the measure and got delays, but the eight-year delay is up.  Menu labeling goes national today.

In a blog post, FDA Commissioner Scott Gottlieb explained FDA thinking about such matters: the agency is pro-consumer and pro-market.

Information about how healthy our food is gives us the chance to make better choices about our diets. This same information also inspires competition among producers to formulate food in ways that make it more healthful…. food producers should be able to compete on the ability to develop foods that are healthier, and make reliable, science-based claims about these attributes to consumers.  So at FDA, we’re reforming our policies to make it more efficient to develop these claims. This clarity may encourage more manufacturers to invest in making foods healthier.

Uh oh.  More health claims (these, I insist, are about marketing, not health).  So that’s the trade-off; we get menu labeling at the price of more and inevitably misleading health claims.

Gottlieb defended the measure on Fox News.

If you have information on menu labels, the average consumer will reduce their caloric intake to 30-50 calories a day,” Gottlieb said during the interview. “That turns out to be about 3 to 5 pounds per year that you can lose just by having better information.

This is correct in theory, if you assume that one pound of fat contains about 3500 calories (this estimate comes from multiplying 454 grams per pound by 9 calories per gram for fat and rounding off).  Then it will take 3500 divided by 50 = 70 days to lose one pound.

In practice, such small calorie deficits are hardly measurable.  Most estimates suggest that losing weight requires a deficit of 300 to 500 calories a day (My co-author and I discuss all this in our book, Why Calories Count: From Science to Politics).

For an quick summary of the studies of menu labeling, JAMA has a useful review.

It’s great that Commissioner Gottlieb defended menu labeling on Fox News.  Looking at the calories on menu items is fun!

And it most definitely works for me.  If I see a muffin labeling at 700 calories, I share it with friends.

Remember calorie labeling on the menu boards of chain restaurants?

This started in New York City in 2008.  The chains have survived, and the world has not come to an end.

In 2010, the Affordable Care Act (remember that?) was passed with a provision to take calorie labeling national.

Since then, the delays have been endless but menu labeling is scheduled to go into effect in May 2018.

For the history of all this, see the FDA’s summary.

But now the House of Representatives has introduced, and will vote this week on, an anti-menu-labeling bill, the Common Sense Nutrition Disclosure Act (HR. 772).  Its purpose is to further delay and weaken the provisions.

The Center for Science in the Public Interest  (CSPI) has issued an emailed action alert pointing out that:

Over 80 percent of Democrats, Republicans, and Independents support menu labeling, according to a new January 2018 poll released by the Center for Science in the Public Interest. Further, over 80 percent think chain supermarkets, convenience stores, and pizza (like Domino’s) should be held to the same standard for labeling calories as chain restaurants.

It has suggestions for immediate advocacy:

• Mobilize your members to write their Representative. CSPI’s action alert is here.
• Engage your grassroots to urge a number of House Democrats who previously voted for the bill last Congress to oppose the bill. We have a list of targets and can provide a model note and talking points.
• Send a letter to the House opposing the bill. We can provide a model note.
• Activate your members via social media. Here are some examples:
  • 8 out of 10 Americans across all parties—Democrats, Republicans, and Independents—want calorie labeling when eating out. Oppose #HR772 that would weaken and delay #menulabeling: http://bit.ly/2phlGJd.
  • 8 out of 10 Americans think pizza chains should label calories just like restaurants, yet #HR772 would exempt labeling inside pizza chains. Protect #menulabeling: http://bit.ly/2phlGJd.
  • Congress is considering weakening enforcement and consumer protections for #menulabeling. Urge them to oppose: http://bit.ly/2phlGJd.

CSPI provides additional resources about the problems with this bill:

• Claims versus Reality of the Common Sense Nutrition Disclosure Act
• The Problem with Arbitrary Serving Sizes
• Hiding Calorie Labeling is like Hiding Speed Limits

UPDATE

The House passed the bill on a vote of 266 to 157.

At the moment, we are on track to have the long-delayed calorie labeling on menu boards by May 2018.

The FDA has just issued draft guidance on how to do it.

Recall that menu labeling was authorized by the Affordable Care Act of 2010, but the FDA delayed it until May 2017 and the Trump administration delayed it again for another year.

Why?  Lobbying by everyone affected by it, but particularly by trade groups for movie theaters, grocery stores, and pizza places.

FDA Commissioner Scott Gottlieb issued a statement listing the agency’s compromises for these groups:

We’ve heard the [industry’s] concerns, took them to heart, and are responding with practical solutions to make it easier for industry to meet their obligations in these important public health endeavors.

For instance, some store owners asked us whether posters, billboards, coupon mailings, and other marketing materials would meet FDA’s definition of a menu that would be required to include calorie information. Our new draft guidance explains that these materials are not considered menus under our regulation and do not require calorie counts.

Supermarket and convenience store managers with self-service buffets or beverage stations asked whether they needed to have an individual sign next to each item with a calorie declaration. While this is one way to comply with the regulation, our draft guidance offers other practical ways to post calories for multiple items on a single sign. For instance, a single sign posting that is visible while consumers are making their selection is one way to comply that may provide additional flexibility for some establishments.

Pizza delivery chain owners told us they were struggling to develop menu boards reflecting the thousands of topping combinations people might want on their pizza, so we provided several new examples for how to do this to help them comply with the law’s plain language.

For some segments of the industry, these compromises are not enough.

According to Politico, a spokesman for the National Association of Convenience Stores (NACS) complained that the new guidelines do

nothing to pull down the barriers to compliance that have retailers facing extraordinary costs, uncertain enforcement and frivolous lawsuits…The failure of FDA’s latest menu-labeling ‘guidance’ to address the concerns of NACS and others has left even the agency confirming that Congress must step in to fix its one-size-fits-none mess.

Such groups must think that menu labeling will discourage sales of high-calorie items.  Good.  That’s their point.

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.

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.

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.

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….