NATSO Urges FDA to Revise Final Menu Labeling Rules

NATSO on Aug. 2 urged the Food and Drug Administration (FDA) to revise the final menu labeling rules to make it easier for the truckstop and travel plaza industry to comply with the regulation to provide accurate nutritional information to customers as well as eliminate the possibility of criminal penalties for violations.

NATSO submitted comments to the U.S. Department of Health and Human Services after the agency solicited public comment on how the Final Rule could be improved in the wake of a May 1 announcement that the compliance date would be delayed until May 7, 2018. Restaurants and food retailers were going to have to comply by May 5, 2017.

NATSO also is seeking legislative improvements to the Final Rule. In late July, the House Energy and Commerce Committee advanced H.R. 772, the “Common Sense Nutrition Disclosure Act,” by a vote of 39-14. It is not yet known when that legislation will be considered on the House floor.

As NATSO members are aware, the FDA's menu labeling rule presents a number of complexities for travel stores and convenience stores that sell prepared food and is exceedingly burdensome for small business franchisees. The rule requires any chain restaurant or convenience store with 20 or more locations to display calorie counts on menus and menu boards for all prepared and packaged food items for sale.

In its comments, NATSO said it supports providing nutritional information to its customers but that modifications to the Final Rule were necessary to enable the truckstop industry to provide nutrition information in ways that are practical to its businesses and useful to customers.

Specifically, NATSO said the Final Rule constricts NATSO members’ ability to offer their customers a variety of food products at their convenience stores and restaurants, hurts small business food suppliers, and inappropriately treats chain restaurants more favorably than truckstops and convenience stores.

The Final Rule also makes it exceedingly difficult to offer food in a buffet style setting, which many truckstop restaurants offer, is unclear regarding whether food retailers can safely rely on their suppliers’ statements with respect to calorie content, and fails to clearly distinguish between what qualifies as a menu versus an advertisement.

NATSO urged FDA to:
revise the Final Rule to only require food items that are offered at 20 or more locations within a chain to be subject to the menu labeling requirements;

permit restaurants to offer buffets to include all caloric information on a per serving basis that does not vary and in a single location;

clarify that if a food supplier determines a food item’s nutrient content that a retailer purchasing food from that supplier is considered to have a reasonable basis for declaring the nutrient information received from the supplier;

and clarify that advertisements are not menus, specifically stating that each store or restaurant has only menu that is subject to the menu labeling rule.

NATSO further detailed concerns with the Final Rule’s enforcement provisions, arguing that it is “exceedingly strict” and “could plausibly result in recent high school graduates who are managing the food operations of a restaurant or convenience store being charged with a felony for small, understandable, unintentional violations.”

The Final Rule currently provides no flexibility for food retailers to adjust or fix calorie information that may be incorrectly labeled. Given the Rule’s complexity, NATSO is seeking a grace period where retailers can adjust caloric information before FDA initiates or imposes a penalty.