C-store Retailers Lose Menu Labeling Battle

SILVER SPRING, Md. — The Food and Drug Administration (FDA) finally released its finalized rules on menu labeling that, much to the dismay of convenience industry insiders, include c-stores under the regulations.

NACS, the Association for Convenience & Fuel Retailing, expressed disapproval of the new menu labeling regulations imposed on convenience stores and other food establishments including grocery stores, movie theaters and vending machines.

"The FDA has clearly gone beyond congressional intent by expanding the types of businesses that fall under this law to include convenience stores," said Lyle Beckwith, senior vice president of government relations for NACS. "The one-size-fits-all approach that the FDA announced today would treat convenience stores as though they are restaurants, when in fact they operate very differently. It is now up to the bipartisan, bicameral opponents of this regulatory overreach to enact legislation introduced in both houses of Congress that reasonably defines a restaurant as a business that derives at least 50 percent of revenue from prepared food."

The final regulations require caloric information to be listed on menus and menu boards in chain restaurants, similar retail food establishments and vending machines with 20 or more locations to provide consumers with more nutritional information about the foods they eat outside the home, according to the FDA.

"Americans eat and drink about one-third of their calories away from home and people today expect clear information about the products they consume," said FDA Commissioner Margaret A. Hamburg. "Making calorie information available on chain restaurant menus and vending machines is an important step for public health that will help consumers make informed choices for themselves and their families."

Play by the Rules

The menu labeling final rule applies to restaurants and similar retail food establishments if they are part of a chain of 20 or more locations, doing business under the same name and offering for sale substantially the same menu items. Covered food establishments will be required to clearly and conspicuously display calorie information for standard items on menus and menu boards, next to the name or price of the item.

Seasonal menu items offered for sale as temporary menu items, daily specials, and condiments for general use typically available on a counter or table are exempt from the labeling requirements, the FDA said.

According to the agency, it considered more than 1,100 comments from stakeholders and consumers in developing these rules. In response to comments, it narrowed the scope of foods covered by the rule to more clearly focus on restaurant-type food, made other adjustments such as ensuring the flexibility for multi-serving dishes like pizza to be labeled by the slice rather than as a whole pie, and provided establishments additional time to comply with the rule.

In addition, the menu labeling final rule now includes certain alcoholic beverages served in covered food establishments and listed on the menu, but still provides flexibility in how establishments meet this provision. The majority of comments supported including alcohol because of the impact on public health.

The menu labeling rule includes food facilities in entertainment venues such as movie theaters and amusement parks as well. 

Restaurants and similar retail food establishments will have one year to comply with the menu labeling requirements.

To help consumers understand the significance of the caloric information in the context of a total daily diet, menus and menu boards must include the statement: "2,000 calories a day is used for general nutrition advice, but calorie needs vary."

The menu labeling final rule also requires covered establishments to provide, upon consumer request and as noted on menus and menu boards, written nutrition information about total calories, total fat, calories from fat, saturated fat, trans fat, cholesterol, sodium, total carbohydrates, fiber, sugars and protein.

The vending machine final rule requires operators who own or operate 20 or more vending machines to disclose caloric information for food sold from vending machines, subject to certain exceptions. Vending machine operators will have two years to comply with the requirements.

C-stores Favor Alternative Bills

The Affordable Care Act, enacted in 2010, requires a national, uniform nutrition-disclosure standard for foodservice establishments. The broad rules announced Tuesday seek to establish this standard, according to NACS.  

The association has long advocated to the FDA that any menu labeling regulations must account for differences between the convenience store business model and a chain restaurant business model. However, the association said the new rules announced Nov. 25 don't recognize how c-stores, grocery stores, delivery operations and other approaches to foodservice are different than restaurants.

NACS currently supports H.R. 1249, the Common Sense Nutrition Disclosure Act, which was introduced by U.S. Reps. Cathy McMorris Rodgers (R-Wash.) and Loretta Sanchez (D-Calif.), and S. 1756, which was introduced by U.S. Sens. Roy Blunt (R-Mo.) and Angus King (I-Maine). Both are currently pending in Congress.

According to NACS, this legislation would codify a less burdensome approach to menu labeling by limiting the provision in the health care law to establishments that derive 50 percent or more of their revenue from food that is intended for immediate consumption or prepared and processed on-site.

Restaurants' Take

While NACS voiced disapproval of the FDA regulations, the National Restaurant Association (NRA) released a statement supporting the move.

"The National Restaurant Association strongly believes in the importance of providing nutrition information to consumers to empower them to make the best choices for their dietary needs," said NRA President and CEO Dawn Sweeney. "Under the federal menu labeling regulations, which the association sought and supported, nutrition information will soon be available in more than 200,000 restaurant locations nationwide."

The National Restaurant Association joined forces with more than 70 public health and stakeholder groups to advocate for a federal nutrition standard on information available at the point of ordering, Sweeney said.

"We believe that the [FDA] has positively addressed the areas of greatest concern with the proposed regulations and is providing the industry with the ability to implement the law in a way that will most benefit consumers," Sweeney added. "We look forward to working with the agency as the implementation period begins and toward helping the industry adjust to the new rules. We appreciate the diligence the FDA took in understanding the complexities of how this regulation will impact the restaurant industry, and the patrons of restaurants all across the country."