Jul 8, 2011
ARLINGTON, VA—July 8, 2011—The Food Marketing Institute (FMI) filed comments this week on the Food and Drug Administration’s (FDA) proposed rule implementing section 4205 of the Affordable Care Act (ACA), which requires nutrition labeling on menus of standard items in chain restaurants.

One option FDA proposed in implementing the menu labeling law took an overly broad interpretation of the language found in the original legislation. FDA categorized mainstream supermarkets without restaurants or menus as “similar” to chain restaurants. FMI urged FDA to ensure that its rule was consistent with the plain language and intent of Congress and adopt the agency’s own alternative to limit scope of the rule to restaurants with menus or establishments that are primarily in the business of selling restaurant foods.

The law helps restaurants by providing a national uniform standard that preempts various state and local menu labeling laws. However, there are fundamental differences between the chain restaurant industry and supermarkets or grocery stores. These differences have been historically recognized, as labeling regulations - such as for nutrition panels, food safety, allergens, ingredients, and country-of-origin labeling - have always been applied differently for supermarkets than for restaurants. This difference is a key reason why no states’ or municipalities’ menu labeling laws have been applied to supermarkets.

“This is a menu labeling law and was passed by Congress with that intent. Supermarkets that have chain restaurants inside stores with menus and menu boards should and expect to label those menus in compliance with this law. However, it makes no sense and certainly was not the intent of Congress to ask supermarkets to find a way to label every cut up cantaloupe, olive in the olive bar or birthday cake,” says Leslie G. Sarasin, president and chief executive officer of FMI. “This issue is not about nutrition information, which food retailers already provide on some 95 percent of retail foods, but is about the unfair application of a law to a group it was never designed for or intended to affect. FDA’s own cost analysis of the proposed rule acknowledges a disproportionate cost for supermarkets to comply with restaurant menu labeling.”

Another of FDA’s options for interpreting the law fails to take into account the magnitude and the changing nature of items supermarkets would be required to label, which grossly outweigh the number of items restaurants offer. In addition, supermarkets already must comply with a multitude of laws that do not currently apply to restaurants including the Bioterrorism Act and a number of provisions of the Food Safety Modernization Act.