Healthy Eating Advocates, Convenience Stores Split on Delay for Menu Labeling Rule

Advocates for healthy eating called on FDA this week to let a menu labeling rule go forward to fight obesity. But a trade group for the nation’s convenience stores said regulators did the right thing in May, when they put the brakes on the rule a day before it took effect.

Comments filed Wednesday with FDA were the latest chapter in efforts to enact uniform standards for menu labels, something that many national restaurant chains desire after several jurisdictions, including New York City, enacted a patchwork of local laws to combat obesity.

Leaders of the Center for Science in the Public Interest (CSPI), which also supports food safety measures and soda taxes, said the delay harmed restaurant and store chains that had labeling plans ready to go. But most of all, CSPI said, the delay harmed consumers.

“Interest by the public is intense: more than 60,000 comments from consumers were estimated to have been submitted to the FDA to date in opposition of further delay,” CSPI said in a statement. “A recent survey of the top 50 restaurant chains in 2016 found that all 50 had calorie information either online or in the restaurant,” the group said, citing a survey in a restaurant trade publication.

CSPI charges that real purpose of the delay is to give time for the rule’s opponents—including the National Convenience Store Association (NCSA)—to push through legislation that would water down requirements to put labels in plain view and ban arbitrary portion sizes.

In a statement, NCSA said that the final rule was flawed because it did not address the way some small stores and gas stations sell prepared foods. Some stores do not even have menus, the group said.

“Put simply, FDA’s regulations do not provide the necessary flexibility to work for these many different formats. If the regulations are not revised, it is likely some businesses will be forced to limit some of their most innovative food offerings (fresh food offerings in particular), and consumers’ access to a wide variety of affordable food options will be narrowed.”

CSPI responded to these arguments with photos that showed how family-style items are served in settings without menus, but with easily changed labels in front of the items in display cases. While the convenience store group said compliance and enforcement would cost $84.2 million, CSPI said the FDA’s early enforcement plans would not be heavy-handed; regulators would work with store owners to comply.

FDA’s efforts to streamline menu labeling go back to December 2014 but have been delayed several times. The final rule, which at the time represented a consensus among healthy eating groups and national restaurant chains, was stopped a day before it was to take effect in May 2017. The new administration announced a yearlong delay to give other affected parties time to comment and comply. The CSPI and the National Consumers’ League sued in June, claiming violations of the Administrative Procedure Act.

The menu labeling delay comes amid other efforts to slow or weaken Obama-era regulations on the food industry, aimed at fighting obesity. FDA also delayed a planned update to the Nutrition Facts label that will highlight added sugar, although Commissioner Scott Gottlieb, MD, has said that is simply a delay and the rule will not be reopened.

Agriculture Secretary Sonny Perdue has called for keeping some rules for school lunches spearheaded by former First Lady Michelle Obama, including those for milk and grains. But Perdue wants more local control, so regional favorites like fried chicken in Georgia and tortillas in New Mexico could reappear on school menus.