The battle over the Obama administration’s effort to require convenience stores, pizzerias, and other eateries to list calorie counts for food offerings goes next to the Senate, with the House’s passage of legislation to rein in the Obamacare-related regulations.
“Accidentally putting too many pickles on a sandwich and increasing its calorie count shouldn’t be a criminal offense,” Rep. Cathy McMorris Rodgers, R-Wash., said during debate on the House floor.
Later Friday, the House passed legislation clarifying the regulations—cosponsored by McMorris Rogers and Rep. Loretta Sanchez, D-Calif.—by a vote of 266-144.
Now the action moves to the Senate, where Sens. Roy Blunt, R-Mo., and Angus King, I-Maine, are sponsoring a companion bill.
The rules from the Food and Drug Administration—set to go into effect this year—would require restaurants, convenience stores, grocery stores, and other establishments with ready-to-go food to list the caloric intake values of items on their menus.
The mandate applies to establishments with 20 or more outlets or franchises.
Under the FDA’s finalized rules, such restaurants or stores must list calorie counts on in-store menu boards and online ordering systems as well as a majority of print advertising such as direct mailers. The regulations also apply to large vending machine operators.
The legislation from McMorris Rodgers and Sanchez, called the Common Sense Nutrition Disclosure Act, amends the Federal Food, Drug, and Cosmetic Act to clarify and make the regulations more flexible for eateries that serve items in a variety of combinations, such as deli sandwiches or pizza.
McMorris Rodgers, the House’s no. 4 Republican as chairwoman of the GOP conference, said the legislation protects small business owners and their employees from frivolous lawsuits and criminal accusations over actions that could be “honest, inadvertent human error”—such as her pickle example.
‘Power Grab by the FDA’
“This legislation is commonsense and provides access to calorie information in a practical, flexible, and simpler manner by clarifying—not significantly altering—complicated regulations,” McMorris Rodgers said in November, before the bill was passed out of the Energy and Commerce Committee.
At a press conference Feb. 10, the Washington Republican said:
When I think of the local salad bar or sandwich options that are available at the deli, I imagine all the possible combinations. You’re thinking about thousands and thousands of different combinations. And here’s the FDA telling these businesses they have to use a one-size-fits-all approach to notify their customers of these nutritional information. It’s another example of a federal agency that is disconnected from its mission.
The McMorris Rodgers-Sanchez bill (H.R. 2017) clarifies that flyers and coupons are not menus, protects establishments from being punished for inadvertent human error, and places compliance on corporate officials rather than local store managers and workers, an Energy and Commerce Committee spokesman said.
“The menu labeling regulation is a power grab by the FDA to regulate businesses not covered by the labeling requirements under Obamacare,” Daren Bakst, a research fellow in agricultural policy at The Heritage Foundation, told The Daily Signal. Bakst added:
The statute was supposed to regulate ‘restaurants or similar retail food establishments.’ Convenience stores and grocery stores are not similar to restaurants. Just because they may sell a prepared food like a hot dog doesn’t make them restaurants by any reasonable stretch of the imagination.
The Obama administration came out Feb. 10 in opposition to the bill with a statement saying:
To provide consumers with calorie and other nutrition information about the foods they eat outside of their homes, the Congress in 2010 required that calorie information be listed on menus and menu boards in certain chain restaurants and similar retail food establishments with 20 or more locations, and on certain vending machines. In 2014, after extensive shareholder and public participation, the Food and Drug Administration finalized rules implementing the statutory menu labeling and vending machine labeling requirements.
H.R. 2017 would undercut the objective of providing clear, consistent calorie information to consumers. If enacted, it would reduce consumers’ access to nutrition information and likely create consumer confusion by introducing a great deal of variability into how calories are declared. The legislation also would create unnecessary delays in the implementation of menu labeling.
‘Empower Consumers’
Rep. Jared Polis, D-Colo., House floor.
“While some say that they don’t like the regulations, the reality is this bill actually delays and waters down the transparency the American people want,” Polis said.
“As a consumer I like to see the calories at all those [chain restaurant] locations. What this bill would actually do is prevent that from happening.”
Opponents of the bill point to obesity-related health issues.
“The whole point of this labeling measure in the Affordable Care Act was to empower consumers to make healthier decisions about the food they eat by simply allowing them to know what’s in it—that’s the broad directions set by Congress,” Polis said.
“Making sure that we have a public health impact, we need a certain level of standardization so consumers can compare nutritional information in restaurants just like they would in packages in stores.”
The FDA mandate, the details of which took years to hash out, has been delayed in implementation.
The final menu labeling regulations are 400 pages long and estimated to cost American businesses more than $1 billion and 500,000 hours of paperwork.
‘Doesn’t Make Sense’
“Like many other regulations, good intentions don’t always add up to practical policy,” McMorris Rodgers said in November.
“Requiring pizza franchisees to post in their stores every potential topping combination—more than 34 million possible outcomes—when more than 90 percent of their orders take place over the phone or Internet, just doesn’t make sense.”
The Senate bill, introduced Oct. 29, was referred to the Health, Education, Labor, and Pensions Committee, which has not scheduled a hearing.
Chairman Lamar Alexander, R-Tenn., said he looks forward to finding a way to pass the bill, Agri-Pulse Communications reported.
The House bill drew support from the National Association of Convenience Stores, Food Marketing Institute, National Grocers Association, Domino’s Pizza, and more than 200 local grocery, pizza and convenience stores across the country.
Under federal law, violation of the FDA’s regulations can result in up to a year in prison or as much as $1,000 in fines, or both.
“The government should not be placing more harmful barriers in the way of hardworking small businesses,” House Speaker Paul Ryan, R-Wis., said in a formal statement following the bill’s passage.
“This important legislation would roll back the FDA’s burdensome menu labeling rule, giving American restaurants, grocery and convenient stores the flexibility they need to be successful. I commend Cathy [McMorris Rodgers] for her work on this measure.”
In a video, Domino’s Pizza broke down its many pizza combinations and captured customers’ reaction to in-depth menu boards:
Menu Labeling from Menu Labeling on Vimeo.
‘Arrogant Assumption’
According to the FDA, posting calories and other nutritional information on menu boards “will fill a critical information gap and help consumers make informed and healthful dietary choices.”
Heritage’s Bakst looks at it from a different perspective:
The rule, and menu labeling requirements generally, presumes that the public is ignorant and requires government to step in and mandate nutritional information be provided to them. If the public wants this information, food establishments will provide the information. We already see this.
Bakst said the legislation takes a “small step in the right direction” but called for Obamacare’s menu labeling regulations to be repealed altogether.
“The FDA appears to be advancing a new public health paradigm that is based on the arrogant assumption that bureaucrats have the ability to accurately influence and even limit what people can eat,” Bakst said. “Food choices should be made freely by each individual based on his or her own preferences, not by bureaucrats in Washington, D.C.”