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Critics Bash FDA Menu-Labeling Regulations

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WASHINGTONIn a country accustomed to eating out and plagued by obesity, restaurants will soon have to reveal calories and other nutritional tidbits for menu items. The disclosures on menus and menu boards could help Americans make better choices about the food they eat. A staggering 68% of the U.S. adult population is overweight or obese under one definition used by the Centers for Disease Control and Prevention (CDC).

Once the final rules have been published and take effect, food establishments subject to them must provide calorie information on menus and menu boards. Consumers will be entitled to additional nutrition information upon request.

But organizations as varied as the Boston Public Health Commission, Dunkin Brands, Inc., and Food Marketing Institute disagree on what food establishments should be subject to the federal rules.

Under a 3-year-old healthcare law, the labeling requirements apply to restaurants and "similar retail food establishments" operating at least 20 locations and selling basically the same menu items. Businesses are deemed "similar" under the proposed regulations if they sell restaurant or restaurant-type grub, and their primary occupation is the sale of food to consumers. That means grocery stores are covered, while such businesses as bowling alleys and movie theaters would be exempt under a proposal the U.S. Food and Drug Administration (FDA) published nearly two years ago.

Public comments reflect challenges the agency faces in addressing various concerns leading up to the final rules, which FDA Commissioner Margaret Hamburg told The Associated Press will be released in the "relative near term."

Some critics contend the agency has exceeded its statutory authority by attempting to regulate food businesses that are different from restaurants, while others maintain the agency's proposed regulations should cover more establishments.

FDA declares Congress' statutory term "restaurants and similar retail food establishments" is "ambiguous," leaving ample room for interpretation. Since the proposed regulations were published, FDA has been inundated with comments that include various interpretations of what constitutes a "similar" establishment and propose numerous changes to the final rules.

"There are very, very strong opinions and powerful voices both on the consumer and public health side and on the industry side," Hamburg said in the interview with the AP, "and we have worked very hard to sort of figure out what really makes sense and also what is implementable."

Critics are plentiful. The proposed regulations not only are inconsistent with the law that gave birth to the labeling requirements, they would burden grocery stores with more than $1 billion in costs during the first year of implementation, argues Erik Lieberman, regulatory counsel for the Food Marketing Institute, which represents 1,500 food retailers and wholesalers.

Section 4205 of the Patient Protection and Affordable Care Act "was designed for restaurants," said Lieberman, who points out roughly 95% of grocery store items already are labeled under the Nutrition Labeling and Education Act of 1990. "If you are just regulating all grocery stores, that's not what Congress said," he added.

In a phone interview, Lieberman argued FDA has greatly underestimated the costs on grocery stores and the number of items that will need to be labeled. All cookies and loaves of bread made in the store, cut fruit and produce in a salad bar are among the foods that would be subject to the requirements, he said.

The Food Marketing Institute has some powerful allies in Washington. In a July 26, 2011, letter to FDAs Hamburg, 23 lawmakers on Capitol Hill urged the agency to exclude grocery stores from the regulations.

"When Congress adopted menu labeling to provide some consistency for chain restaurants trying to navigate the many varied state laws on menu labeling, there was no mention in the law, legislative history or any statements that supermarkets should be regulated," the lawmakers wrote. "Supermarkets are not primarily in the business of selling food for immediate consumption or selling food that is prepared or processed on the premises."

Supermarkets are holding out hope FDA will adopt an alternative definition of "similar retail food establishments" that would generally exclude them from the requirements. That's because businesses under this alternative definition would be constrained to "establishments where the sale of restaurant food or restaurant-type food is the primary business activity."

The Center for Science in the Public Interest (CSPI), the non-profit health advocacy group, argues supermarkets are increasingly competing with restaurants for customers who want prepared food and should be covered under the rules. And Dunkin Brands, Inc., the parent company of Dunkin Donuts and Baskin-Robbins, reckons the regulations should apply to a broader category of businesses.

"The purpose of the law is to provide transparency and consistency in the nutrition information provided to consumers across the country regardless of the venue where the food is sold," wrote Cicely Simpson, director of federal and state government affairs for Dunkin Brands,  in public comments filed with FDA. "Nutrition disclosure must focus on the type of food that is sold,  not the venue or retail format that sells it."

Some other businesses that would be excluded from the proposed regulations include entertainment venues like Chuck E. Cheese and Dave and Buster's, and non-chain restaurants located within chain stores, according to the Boston Public Health Commission.

"Again, we are concerned that this distinction between an outside chain restaurant and one run by the chain store itself is an arbitrary one that deserves reconsideration," wrote officials with the Boston Public Health Commission in public comments filed with the FDA. "Essentially, this would exempt discount retailers, such as Costco, Sams Club and BJs from providing calorie information on the menu boards of their in-store restaurants, even though these menus are highly standardized."

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