Dive Brief:

• The Common Sense Nutrition Disclosure Act, which would amend the federal menu labeling law, advanced out of the House Energy and Commerce Committee on Thursday, according to a release from the Food Marketing Institute. The bill was introduced to the committee back in January.
• The bipartisan bill would revise the disclosure of nutrition information under the current menu labeling law. It allows restaurants and grocery retailers the choice of listing calories for the whole menu item, by serving, or per “common unit” of a food item. The bill also provides additional flexibility on where establishments can post calorie information. Online calorie labeling is a new option for retailers and restaurants where most orders are placed “off-premises.”
• According to FMI's release, “The bill includes sensible modifications that the supermarket industry has continually requested.” The Center for Science in the Public Interest, meanwhile, called it an “anti-menu labeling bill” that would allow establishments to use “arbitrary and unrealistic serving sizes, and to put the information where few customers will see it.”

Dive Insight:

Back in May, just days before the menu labeling law was set to go into effect, the Food and Drug Administration extended the compliance deadline another year, to May 7, 2018. For grocers and convenience stores who felt that the law — part of the 2010 U.S. health care overhaul — was overly burdensome and not built to accommodate retail establishments, this offered breathing room to make amendments.

The Common Sense Nutrition Disclosure Act, or H.R. 772, is one such amendment, and industry groups argue it provides much-needed flexibility. This includes listing calorie counts by one of three different measurements: by the whole item, by serving, or by “common unit.” The latter choice, according to the bill, refers to foods such as multi-serve items that are divided up before being presented to customers. The bill also notes that establishments can post nutrition information “adjacent” to self-serve food items such as prepared foods, and that stores and restaurants that receive most of their business “off-premises” can list information online.

In a statement, Jennifer Hatcher, chief public policy officer with the Food Marketing Institute said, “The committee's strong bipartisan vote demonstrates both Congress' and supermarkets' continued interest in getting the FDA ‘menu labeling’ standards fixed and implemented in a common sense way that fits the variety of foods and formats of grocery stores.”

Peter Larkin, president and CEO of the National Grocers Association, meanwhile, noted that the bill “provides a much-needed solution to a burdensome regulation that was applied on a one-size-fits-all basis to vastly different industries.”

The Center for Science in the Public Interest, a Washington, D.C.-based consumer advocacy organization, argued that the calorie counts amendment could result in misleading information since serving sizes or “common unit” sizes may not be clear to customers. Fattening prepared foods, the organization notes, could be assigned a small serving size that would result in lower calorie listings.

CSPI also argues that increased flexibility regarding the placement of calorie counts would result in establishments placing menu boards away from food items.

“For example, calories could be listed on a menu board by the cash register instead of by the food item where customers are choosing,” the group notes on its website.

Individual supermarket operators have expressed concerns over the FDA’s menu labeling law, noting that it doesn’t take into account their frequently changing menu items and numerous service points throughout stores. But because the menu labeling law was delayed just days before it was set to take effect, many retailers are already in compliance. SpartanNash, for one, put up digital menu boards in delis and signs throughout its bakery, salad bar and prepared food departments in 83 Family Fare Supermarkets ahead of the May 4 deadline.

Regardless of whether or not this bill becomes law, many retailers have already moved forward with menu labeling measures under the current law. Considering the time and money they spent to get to that point, they may not want to amend their new practices.