Calorie Disclosure: Are you prepared?

The Food and Drug Administration (FDA) missed its 2011 deadline to finalize the calorie disclosure rule for vending proposed in April 2011. The rule, according to an FDA official who spoke at the 2011 National Automatic Merchandising Association (NAMA) OneShow, will require operators with 20 or more machines to post product calories for items available in the vending machine, prior to purchase. The official confirmed that a nutritional panel at the point of sale will exempt the vending operator from complying with the FDA rule.

Ruling in consideration

Currently, the proposed rule is being deliberated. Sebastian Cianci, policy analyst and press officer with the FDA, said, “FDA is working diligently on the final rule for vending machine calorie labeling and is considering the comments it received in response to the proposed rule.”

He noted the FDA isn’t permitted to discuss the specific content of the rule before it publishes, but based on the comments received, the FDA may make adjustments to what was proposed.

Despite the rudimentary rule, many industry technology suppliers have developed solutions that meet the current version and, hopefully, the final version. One example is video screens at the point of sale which display nutritional information for each product in the machine. Screens are available as retrofits, like the VendScreen touchscreen and the VIT3 interactive touchscreen from Intui Sense Technologies, a French company. Some are also built into new machines, such as Kraft’s diji touch machine.

Retrofit video screens usually require operators to update the screen content, although some technology suppliers have developed dynamic databases to do this. An example of a touchscreen connected to such a database is the Vendors Exchange International, Inc. (VEII) MIND (Make Informed Nutritional Decisions) stand-alone screen and the customizable “Revision” vending machine door with integrated touchscreen that uses the MIND database.

Some solutions replace traditional keypads, such as U-Select-It’s iCart. This full-color, 7-inch touchscreen replaces the traditional keypad and displays nutritional information prior to purchase.

Rule requires calories only

“Today, all it’s really requiring is the number of calories there are in the whole package,” explained Brent Garson, president of VEII. For situations where technology solutions aren’t an option, VEII has a plastic, retrofit price roll for machines. Instead of the product prices, it shows calories going up in increments that will closely match vend offerings. To meet the needs of the FDA’s rule, operators will need a “calorie” roll for each spiral in the machine. Each time a new product is filled, or the planogram updated, the calorie rolls need to be manually changed.

Garson’s biggest concern about the rule is the need for a “safe harbor” clause. “We’ll be trying to do the right thing,” he said, “but we’ll need some protection in case the information isn’t accurate.” He hopes to see a safe harbor clause similar to “good Samaritan” laws that protect those who assist injured parties.

Protection from prosecution for inadvertent human error in labeling vending products was mentioned in several comments presented to the FDA during the comment period. A letter from the Americans for Limited Government argued the FDA must make a provision that errors in providing this information not be considered “misbranding of any food,” which is prohibited, among other things, in the Food, Drug and Cosmetic Act. The letter continues to say misbranding food is punishable by imprisonment for up to a year and a $1,000 fine for the first offense and three years imprisonment and a $10,000 fine for the second offense.

Industry seeks flexibility

Sandy Larson, senior director and counsel of government affairs for NAMA, said the association’s comments to the FDA focused on allowing the operators as much flexibility as possible. “We didn’t want to see a certain size, color, font, etc. required,” she said. She believes if compliance is left unspecific, even electronic means, such as QR codes taking the consumer to Websites with nutritional data, would comply.