Food And Drug Administration Official Clarifies Calorie Disclosure Rules During National Automatic Merchandising Association OneShow

The calorie disclosure rules for vending machines proposed by the U.S. Food and Drug Administration (FDA) are tentative, and the agency wants the vending industry to read them and offer their comments to help impact the final rules. This was the main message offered by Felicia Billingslea, director of the food labeling and standards staff in the Office of Nutrition, Labeling and Dietary Supplements at the FDA, in her presentation at the National Automatic Merchandising Association (NAMA) government affairs symposium during the recent OneShow in Chicago.

Billingslea attempted to clarify the language of the proposed rules and took questions from the audience. She repeatedly stated that the agency wants to hear from vending operators via the government Website, www.regulations.gov.

"We're trying to build in as much flexibility in these proposed rules as we can," she said. "I am encouraging you to move as expeditiously as you can."

The rules were published in the Federal Register on April 6, 2011 and the public has 90 days to comment. Comments are due by July 5, 2011. Once final rules are published, enforcement will begin one year later. Operators with 20 machines and more will be required to abide by the rules. Calorie disclosure is being required by the Patient Protection and Affordable Care Act which was signed into law in March 2010.

Billingslea said if a consumer can examine a nutrition panel prior to purchase at the point of sale, the vending operator is exempt from the rules. "It (the nutrition panel) must be visible and be able to be read," she said.

The nutrition panel can be on a sign or poster in or near the machine, and it must include the total number of calories per serving.

Asked if a spiral in a machine would be considered an obstruction of calorie disclosure, Billingslea said it depends whether or not the spiral obstructs the nutrition facts as the spiral is stationary, not as it is moving. If a nutritional facts panel is not clearly available and visible prior to purchase, then the operator must disclose calories.

For multiple package servings, the vending machine must display total calories per package, Billingslea said. "We are allowing single-serve disclosure if you do that for multiple-serve package foods," she said.

One area that has not been resolved is how operators can meet the requirement to place the calorie information in close proximity to the machine. A sign must be visible close to its name, price or selection button or number, and it the information must be in all black characters or in one color printed on a white or other neutral background with proper contrast, she said.

If calorie information is in or on the machine, it must be in the same size as the name of the food, price or selection number. "We've attached the size of the calorie disclosure to whatever information it is closest to," Billingslea said.

For machines with limited product selection, such as a popcorn vending machine, the calorie information can be on the front of the machine, she said.

Billingslea said she has no idea when the final rules will be released.

In response to a question from the audience, Billingslea said a team of experts is trying to determine how the rules will be enforced. One option, she said, is for states to enforce the rules.

Asked if disclosing ranges of calories will be allowed, Billingslea said this will not meet the rule as it stands.

When some operators noted they would like more flexible rules, Billingslea said they should communicate this to the FDA prior to the July 5 deadline.

Ned Monroe, NAMA senior vice president of government affairs, said NAMA will submit comments on behalf of the industry, but also strongly encouraged operators to comment.

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