Obamacare calorie rule has food service groups on edge

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A controversial Obamacare rule, targeting food service providers, has business owners and associated groups concerned.

Changes and clarification for a mandate regarding calorie counts on menus was sought through the Obama administration but remained unresolved. Now, the Trump administration appears to be moving forward with the rule’s implementation.

Small business groups, pizza chains, grocery associations and others are looking for clarification on certain implications of parts of the rule, including the definition of a menu for food advertisements, and criminal penalties for “misbranding” food with the wrong calorie counts.

The Food and Drug Administration set the compliance date for the regulation forward to May 2018 to provide time to address the concerns. In September, FDA commissioner Scott Gottlieb said the administration will not be reopening the rule to make changes, but that it will issue guidance to companies in order to address “legitimate concerns about the regulation as it was drafted.”

“It’s going through clearance right now, we are going to issue the guidance at some point … in the fall, and that will keep us on schedule to implement that on time in May,” Gottlieb said.

As it stands, the final guidance issued under the Obama administration, used 171 words to define what a menu is. That definition says anything “from which a customer makes an order selection” is to be considered a menu, which might apply to advertisements and coupons, depending on interpretation.

As written, violations can carry civil and criminal penalties of up to a $1,000 fine, one year in prison, or both.

However, the American Pizza Community, which represents food retailers, says the FDA has not adequately addressed a solution to concerns raised by many in the industry. Without a change to the rule, businesses say they would find it difficult to comply with the guidelines.

Robert Rosado, the director of food and health policy at the Food Marketing Institute, said the Trump administration had addressed the questions over clarification and changes early on, and that concerned parties had been encouraged.

Now, he says, they’re “getting concerned” again, as the FDA no longer seems to be reviewing the changes. Instead, “they’re talking about things like guidance.”

“While that may sound good in Washington speak, the problem is that we’ve been through guidance before with the previous FDA team, and the guidance has just been [a] cut and paste of the same,” Rosado explained. “Frankly, we’re concerned that this issue and this process has been hijacked a little bit.”

A legislative fix called the Common Sense Nutrition Disclosure Act of 2017 is a bipartisan bill sponsored by House Republican Conference chairwoman Cathy McMorris Rodgers (Wash.). The bill is a solution preferred by small businesses, as it provides greater flexibility for businesses in stating calorie information, and fixes the definition of a menu. It would also give businesses 90 days to correct a violation, providing a cushion against unintentional mistakes.

The legislation passed the Energy and Commerce Committee in July and is waiting on a decision by Congress.

“To me, this is an easy one to fix because we’ve brought the solutions to them,” Rosado said.

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