The Patient Protection and Affordable Care Act, signed into law March 23, 2010, includes a provision that creates a national, uniform nutrition-disclosure standard for foodservice establishments.
The nutrition-disclosure provision requires chain restaurants, “similar retail food establishments” and vending machines with 20 or more locations to provide specific nutritional information. Those establishments must post calories on menus, menu boards and drive-thru boards. Buffets, salad bars and other self-service items are also included and will be required to provide caloric information “adjacent” to the item. Establishments must also provide additional nutrition information in writing (e.g., a brochure) upon request. As soon as the bill was enacted, the federal law preempted state or local menu-labeling requirements that are not identical to the federal menu-labeling requirement.
On April 6, 2011, the FDA published proposed regulations to implement the new law. These regulations would define a “covered entity” that must comply with the regulations as any retailer where more than 50% of the store’s floor area is devoted to selling food. However, their definition includes pre-packaged food that is already required to include nutritional information on its packaging.
Foodservice has become an increasingly important component of the convenience store business. The successful model for the industry is moving towards a multi-service establishment that offers the consumer not only the gas they need for their vehicles but also a place to pick up groceries, grab meals on the go, etc. Many in the industry have their own foodservice business or are partnered with other chains. A new uniform standard for the industry can be a positive development, but it must be narrowly tailored to cover only those entities that provide substantial quantities of restaurant food. Otherwise, it will subject many convenience stores to unnecessarily burdensome regulatory obligations.
Any menu labeling regulations must account for differences between the convenience store business model and a chain restaurant business model. The proposed regulations are tailored to the restaurant business model, and unless they are revised to reflect our industry, they should not apply to convenience stores. In comments, NACS recommended to the FDA that a floor space calculation should be replaced with one based on revenues. NACS believes an entity should be covered only if revenues from restaurant-type food sales exceed 50% of the store’s overall sales. In evaluating this ratio, pre-packaged food should be excluded from the “restaurant-type food” revenues and fuel sales should be included in the store’s overall sales.
NACS worked with Representative Cathy McMorris Rodgers (R-WA) and Loretta Sanchez (D-CA) to introduce H.R. 1249, the Common Sense Nutrition Disclosure Act. The 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 (a) intended for immediate consumption or (b) prepared and processed on-site. Prepackaged food would not be considered in this equation.