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February 14, 2013

FDA Proposes New Food Labeling Rule: Are Plumper Prices Going to Be the Cost of Whittled Waistlines?

Consumer Advertising Law Blog

There is no denying that the United States is facing a health crisis of obese proportions. To combat the problem, the Food and Drug Administration (FDA) recently issued a proposed food labeling rule and is asking the American public to weigh in. So what should the government do to help us make healthier choices at the supermarket, and what effect will this proposed rule have on businesses (and consumers) whose profit margins already toe the line between slim and emaciated?

The FDA's proposed rule would require calorie labels on menus and menu boards in chain restaurants and retail food establishments − including grocery and convenience stores as well as coffee and pastry shops − with 20 or more locations nationwide. The FDA's existing food labeling regulations already mandate that pre-packaged food include nutrition information labels, but this new rule would require grocery stores "clearly and prominently" to label the calorie content of prepared, unpackaged food such as soups, salad bar items, baked goods and other ready-made snacks. For such food on display, calories would have to be posted either per item or per serving on a sign next to the food. I know what you're thinking: now I'm going to be forced to confront the waistline implications of that gooey chocolate donut with cream filling before I enjoy it, or feed it to my kids as a weekend treat? Unfortunately, that's the point.

To help consumers understand the significance of this information, a statement concerning daily recommended calorie intake would also be on display. Additionally, supplemental written nutrition information − such as calories from fat, total fat, saturated fat, trans fat, cholesterol, sodium, total carbohydrates, sugars, dietary fiber, and protein − would be available upon request for standard menu items.

The proposed rule stems from a provision of the Patient Protection and Affordable Care Act requiring restaurants and vending machines with 20 or more locations nationwide to post nutrition content for standard menu items. The FDA's rule extends that mandate to cover establishments that sell restaurant-type food and whose primary business activity is the sale of food to consumers. Under the rule, an establishment's "primary business activity" is the sale of food to consumers if greater than 50 percent of the establishment's total floor area is used for the sale of food. This includes grocery and convenience stores, but excludes establishments such as movie theatres, bowling alleys, and airplanes.

The FDA reasons that this rule is aimed at helping Americans live healthier lives by informing them about how prepared foods they purchase fit in to their overall nutrition needs. Seeing calorie content may incentivize some shoppers to choose the three-bean salad over the higher-calorie mac and cheese. Critics of the rule claim that it would overburden thousands of grocers and convenience store owners by requiring investment in either expensive software or off-site laboratory testing to determine the nutrition content of food. The FDA estimates an initial cost of $315 million to comply with the proposed regulation, while critics of the rule warn that compliance could weigh in at a hefty $1 billion in the first year alone. That cost, some argue, will inevitably be passed on to consumers in the form of plumper prices at the checkout.

Let the FDA know where you fall on the scale. The FDA invites public comments to the proposed rule, which it says will be taken into account when drafting the final rule to be issued this spring. Until then, grocers and other store owners that may be affected by this rule should plan for a possible new expense.

© Arnold & Porter Kaye Scholer LLP 2013 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

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Brittany E. McClure
Brittany E. McClure
Senior Associate
Washington, DC
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