Senate appropriators take aim at FDA menu labeling rule

By Whitney Forman-Cook

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WASHINGTON, March 12, 2015 - Republicans on the Senate committee responsible for writing the Food and Drug Administration's (FDA) budget attacked the agency's new menu labeling rule, which they claim is overly broad in its regulation of supermarket delis and other non-restaurant food outlets.

At the hearing today, Jerry Moran, chairman of the Appropriations subcommittee on Agriculture, Rural Development and the FDA, told the FDA Commissioner Margaret Hamburg that the rule, which implements provisions of the Affordable Care Act, “lacks a great deal of business practicality.”

“I was (also) disappointed to see the inclusion of grocery stores (and) convenience stores” on the list of the rule's regulated food retailers, Moran said in his opening statement.

Lets Talk Food

The rule, finalized in November, requires restaurants with more than 20 locations to list calorie information for their products on menus and menu boards. It also applies to foods, such as made-to-order sandwiches, ordered from a menu or menu board at a grocery store or delicatessen, and foods available at self-serve salad or hot food bars.

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During the hearing, Sen. Roy Blunt, R-Mo., suggested food retailers and restaurants would not be able to comply with the rule by the end of the year, due to its complexity and what he said were unclear definitions for terms like “standard menu item” and “food on display.” Blunt sponsored a bill in 2013 that would have exempted grocery stores from the FDA rule.

In addition to being unfair to grocers, Moran accused the FDA of not providing adequate information on what the new rule requires of store owners.  

Hamburg agreed that the FDA “need(ed) to clarify misinformation” and dispel rumors with more outreach. For instance, she said, pizza retailers will not be required to note the caloric or sodium content of its products on packaging, contrary to a claim made by Moran.

“We plan to propose some guidance, or put out a framework, to address some of these areas (of compliance) that are more confusing, particularly for foods on display,” she said.

“Our goal in (enacting this rule) is not to disrupt practices or add unnecessary burden,” Hamburg testified. More publications with specific compliance information for the food industry are to come, she added. One such publication was released by the FDA today.

Jennifer Hatcher, a lobbyist with the Food Marketing Institute, which represents supermarket chains was not impressed. The FDA publication, “does not attempt to address any of the outstanding questions FMI members have raised,” she said in a press release.

“Food retailers were given only until Dec. 1 to comply with FDA's expansive menu labeling mandate… and we still have not received critical guidance from FDA to move forward with our efforts,” Hatcher said.

Moran did have positive things to say about FDA's approach to food safety, as embodied in revised regulations under the Food Safety Modernization Act (FSMA).

“I was pleased that the agency took many of the concerns within the agricultural community into account by re-proposing significant portions of the FSMA rules because they were unworkable for farmers,” he said.

One of those changes was an added exemption to a FSMA provision that would have required farmers to irrigate their farms with water rated for recreational purposes.

“We have tried to make this a process where we can learn from the real world experience, look at the data and the evidence and look at the impact on public health,” Hamburg said.

“I think that is a goal that we all share: to ensure that we have a safe, high quality food supply and that we don't overly burden farmers and producers in the process.”

The purpose of the hearing was to review the FDA's $4.9 billion fiscal 2016 budget proposal. Republicans are planning to use the appropriations process to block or shape President Obama's regulatory agenda.

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