Dive Brief:

• Congress this week passed an amendment to the federal menu labeling law established by the Obama administration and set to take effect May 7. The measure passed the House by a vote of 266-157, with 32 Democrats voting with a unified Republican contingent.
• The bill 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. It also provides additional flexibility on where establishments can post calorie information, along with legal protections for establishments that make good-faith efforts to comply. Online calorie labeling is a new option for retailers and restaurants where most orders are placed "off-premises."
• Trade groups like the Food Marketing Institute say the new bill provides much-needed flexibility for retailers on menu labeling compliance, which was delayed last May just days before it was set to take effect. Watchdog groups like the Center for Science in the Public Interest, however, argue the bill obscures the calorie transparency the law is attempting to provide.

Dive Insight:

Last fall, the Food and Drug Administration issued draft guidance for the menu labeling law set to take effect this May. In addition to insisting that the law would go forward as opposed to hitting yet another delay, the FDA offered minor concessions to industry groups that had fought implementation.

In a statement, FDA commissioner Scott Gottlieb wrote that, to make it easier for retailers to list calorie counts at prepared food and beverage stations, the FDA would allow establishments to list calories on a single sign within the department rather than next to every item on display. Marketing materials like billboards and mailers, meanwhile, do not qualify as menus, he wrote, and thus won't require calorie listings.  

These concessions, however, weren't enough to satisfy food retailers, who insist the law takes a one-size-fits all approach to the highly variable world of grocery prepared foods. Unlike restaurants, which have a single ordering point, supermarkets offer prepared foods in a variety of different formats at different points throughout the store. Requiring stores to provide uniform calorie labeling at points of service, as the law requires, is unrealistic, groups argue.

The Common Sense Nutrition Disclosure Act, or H.R. 772, is an amendment that offers the sought-after flexibility food companies seek. 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 noted, "This strong bipartisan effort demonstrates both Congress' and food retailers' interest in providing standardized nutrition information to customers without constant worries about fines and penalties for a slight error."

National Grocers Association president and CEO Peter Larkin, meanwhile, said, "Independent supermarket operators are committed to providing their customers with accurate nutritional information, but need the flexibility to implement the rule across a multitude of store formats, all of which operate much differently than a chain restaurant."

The Center for Science in the Public Interest, a consumer advocacy group that has opposed the amendment, reiterated its distaste for what it characterizes as an attempt to dilute the menu law's standards and transparency.  

"The so-called 'Common Sense Nutrition Disclosure Act' would upend disclosure by letting restaurants invent misleading serving sizes, hide calories in hard-to-find places inside supermarkets and convenience stores, and remove calories from inside pizza chains,' said Margo Wootan, CSPI's vice president for nutrition, in a statement.

Because the menu labeling law was delayed at the eleventh hour last year, many retailers and restaurants have already implemented menu labeling. 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.

It's unclear whether these retailers will amend their practices if the Common Sense Nutrition Disclosure Act becomes law. In the meantime, a Senate companion bill has been introduced by senators Roy Blunt (R-MO) and Angus King (I-ME).