By Matt Foley,
Senior Manager, Government Relations
Despite the many cooks in the kitchen working on the menu labeling regulation, there’s a key ingredient still missing: common sense. The law, which was wrapped up within the Affordable Care Act, was originally intended for national chain restaurants, but later expanded to include supermarkets in the rulemaking process. To be clear, grocers are not seeking an exemption from the law. Rather, we’re simply asking the FDA to recognize a one-size-fits-all regulation won’t work for supermarkets like it would for restaurants, two vastly different industries.
Luckily, there were several opportunities this week for NGA to share why the measure, in its current form, is burdensome to the independent supermarket industry. First, the House Energy and Commerce Committee held a markup on the Common Sense Nutrition Disclosure Act (H.R. 772) and approved the bill. NGA applauded lawmakers for advancing the bipartisan measure, introduced by U.S. Representatives Cathy McMorris Rodgers (R-WA) and Tony Cardenas (D-CA), which would clarify the Food and Drug Administration’s (FDA) final rule on menu labeling to create flexibility for grocers to comply.
On the regulatory front, the FDA recently extended a comment period for the industry to weigh in on the final rule. NGA is once again urging regulators to provide the flexibility supermarkets need to comply with the rule with written comments submitted to the agency. The request for comments come after the FDA delayed the implementation date for another year – to May 8, 2018 – after NGA sent a citizens’ petition on behalf of the independent supermarket industry.
In the comments, NGA urges to allow supermarkets the option to provide customers with nutritional information through centralized menu boards, protect businesses from fines suffered due to inadvertent human errors, allow for the averages or ranges for variable menu items, and allow unique items sold at one location to not be covered under the rule. The comments also ask the FDA to consider the initial and ongoing costs independent grocers must bear in order to comply, and minimize the cost of compliance to create the smallest impact as possible on the independent supermarket industry.
As it stands, implementation of the regulation would cost nearly $1 billion for the supermarket industry in the first year alone – one of the costliest ever imposed. The average supermarket covered under the rule will have more than 100 qualifying items, requiring recipes to be standardized, nutritional information to be calculated by outside parties or software, in-store signage to be created, training conducted, and in many cases software e and hardware for in-store scales must be replaced. Most alarming, however, is the threat of a $1,000 fine and the possibility of jail time for associates who accidentally mislabel an item.
Regardless of whether independent grocers operate one or 20+ stores, what makes the industry unique is operators run their supermarkets like neighborhood stores. The offerings in their delis and salad bars will often differ from one location to the next based on the preferences of the local community. It’s crucial that the FDA recognize the community ties that make the independent supermarket industry different from the large chains who typically have standard menu boards throughout the country.
Until then, NGA will continue working with regulators to find a create flexibility for supermarkets and encourage Congress to pass the Common-Sense Nutrition Disclosure Act (H.R. 772 & S. 261) to find an appropriate solution for this cumbersome regulation.
If you have any questions, please reach out to Matt Foley, senior manager of government relations, via email at MFoley@nationalgrocers.org.