Common Sense Nutrition Disclosure Act (H.R. 772)
The House passed (266-157) H.R. 772, the Common Sense Nutrition Disclosure Act of 2017
Summary
H.R. 772 amends the Federal Food, Drug, and Cosmetics Act to clarify the information certain retail food chain establishments, with 20 or more locations, must disclose about nutrition to the consumer to prevent overly burdensome regulations for certain establishments, such as convenience stores, supermarkets, grocery stores and pizza restaurants, and to provide flexibility in how restaurants display calorie information.
Specifically, the bill allows retail food establishments where the majority of orders are placed by customers who are off-premises at the time such order is placed, such as pizza restaurants, to disclose nutritional information on a remote-access menu (such as a menu available on the Internet) as the sole method of disclosure instead of on-premises writings. The bill also eliminates criminal penalties and allows restaurants and retailers to take corrective action, and preempts civil litigation for violations of the federal menu labeling law and any state laws that may exist. The bill accommodates for inadvertent variations that occur during the food preparation process.
Background
The 1990 Nutrition Labeling and Education Act requires nutrition labeling of most foods and dietary supplements, but it did not require labeling of food sold in restaurants. The Patient Protection and Affordable Care Act (ACA) included a provision that required nutrition labeling in certain restaurants, similar retail food establishments, and for certain vending machine items because there was a patchwork of state and city nutrition labeling requirements that was causing many issues for the restaurant industry. Specifically, these labeling requirements apply to standard menu items offered for sale in chain restaurants or similar retail food establishments that have 20 or more locations, which conduct business under the same name regardless of the type of ownership of the locations, and that offer the same menu items for sale.
Pursuant to these requirements, the Food and Drug Administration (FDA) published an implementing rule establishing calorie labeling requirements for prepared food items, including alcoholic beverages, sold in certain restaurants, convenience stores, grocery stores, and movie theatres, which was finalized on December 1, 2014. The rule was set to take effect one year later (December 1, 2015); however, the compliance date was extended to December 1, 2016, in the wake of concerns expressed by industry groups, trade associations, and some Members of Congress. The delay of the rule was codified in the Consolidated Appropriations Act of 2016, stipulating that the rule would become effective on December 1, 2016 or one year after final guidance is issued, whichever comes later. According to the Committee, ”the delay is not enough to address industries many concerns, in one year, industry will find itself in this position again needing a legislative solution.”
Prior to the FDA rule, some food establishments, such as McDonalds, Panera Bread, and Starbucks, had already begun voluntarily posting nutrition information. However, variable state and local regulations had resulted in a patchwork of labeling requirements, making compliance more challenging for chain food establishments.
According to the bill sponsor, “In their current form, menu labeling regulations are fundamentally impractical and unnecessarily expensive. Compliance with this regulation is estimated to cost American businesses more than $1 billion and 500,000 hours of paperwork. This is time, energy, and financial resources that should be spent on creating jobs and building up the economy – not on paperwork. […] This legislation is commonsense and provides access to calorie information in a practical, flexible, and simpler manner by clarifying – not significantly altering – complicated regulations.”
The House previously considered similar legislation in the 114th Congress, H.R. 2017, on February 12, 2016, and passed the legislation by a vote of 266-144-1.
Cost
The Congressional Budget Office estimates enacting H.R. 772 would not affect direct spending or revenues; therefore, pay-as-you-go procedures do not apply. For the original bill, CBO estimated implementing the legislation would cost $8 million over the 2018-2022 period. A CBO estimate is not currently available for the updated bill, but Committee staff expect the score to be smaller given the removal of some provisions.
Democratic Whip Steny Hoyer (MD):
This bill would amend the Federal Food, Drug, and Cosmetic Act to require the Food and Drug Administration (FDA) to revise its rule regarding the nutritional information that chain restaurants and similar retail food establishments must disclose to their consumers. The underlying menu labeling requirement was established as part of the Affordable Care Act (ACA), and final regulations were issued in December 2014. However, implementation has been delayed repeatedly as the FDA provided additional guidance to food establishments to clarify how the rules would be applied. This bill would further delay implementation of FDA requirements currently set to take effect in May of this year and make several changes to the rules.
The bill would amend the statutory requirements that restaurants and other retail food establishments list the calories associated with the standard menu item and instead give them flexibility to choose among several different ways of displaying calorie information: (1) the number of calories contained in the whole standard menu item; (2) the number of servings as determined by the establishment and number of calories per serving; or (3) a calorie count for individual items in a multi-serving item. The bill also permits establishments to designate one primary menu or menu board, as well as flexibility in labeling caloric totals associated with food items when customers are able to add or mix ingredients, such as toppings or flavors.
H.R. 772 would also change the rules for food establishments in which a majority of consumers place orders remotely or off the premises, such as pizza shops, to allow those companies to post the required caloric and nutritional information online rather than in the store. The bill would prohibit civil suits for noncompliance with federal, state, or local menu labeling rules and require the FDA to give restaurants ninety days to correct violations before imposing penalties.
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