Guest Blog: Operator Perspective On 'Final' FDA Guidelines - You May Not Have Been Told The Whole Truth

Dec. 11, 2014

As most operators are aware by now, the FDA recently issued the final rule on vending machine nutrition guidelines. This is an issue I have been tracking for over 4 years now. In 2011, I submitted a five page letter to the FDA to provide some insight from an operator’s perspective. I do believe there is merit in providing nutrition information so that interested consumers can make informed choices. I do not think the regulations should treat consumers as if they are incompetent.

Most of what I have been reading has been positive on the final rule, including NAMA’s response, but I fear the voice of the operator has been lost and I wonder if the true burden to operators has not been shared.

In my letter to the FDA, I detailed a few key issues and offered suggestions that would allow operators to comply with the guidelines in a practical manner, while providing users with the information they may seek. The FDA responded to each of my comments in their rule, but rejected many of my suggestions.

Certainly, some of the changes made to the final rule are a huge win for operators such as allowing front-of-package calorie disclosure and providing two-years to comply. However, other practical changes they did not accept are troubling. The guidelines are quite dense, so I bring to operators’ attention a few key points:

Retrofitted Screens

I had proposed that the final rules allow for nutrition information to be presented through a digital screen. Providing the nutrition information through a screen would be an efficient and accurate way for operators to comply without requiring significant ongoing expense of updating stickers and signs. It was a win-win for the consumer because instead of walking over to a poster and trying to find what they are looking for, they could simply press the image of the item on the screen and with one touch, view the entire nutrition facts panel.

The FDA rejected allowing compliance through retrofit screens because the user would not be required to view the nutrition information prior to purchase.

We also decline to adopt the comment’s suggested language regarding ‘‘retrofitted’’ vending machines and the manner in which calorie information may be displayed…We also note that the comment’s suggested language, ‘‘may be displayed at the user’s request,’’ would make the display of calorie information discretionary, and such a result would be inconsistent with the statutory requirement

What boggles my mind is that a sign is acceptable and yet there is absolutely nothing requiring a user to walk over to the sign and read the calorie information. But if there is display on the machine that can provide the information efficiently as the user is deciding on product, it is not acceptable because reading the display would be “discretionary”. This application of the guideline is inconsistent and absolutely worse off for the consumer.

By way of analogy, every worksite has all those required posters regarding employment law, yet almost no one reads those. If you had a question about a law, you’re more likely to just Google it than to walk over the break room and try to read the poster. This is not a solution for today or tomorrow and I find it fascinating that the rationale for not accepting this proposed solution is that reading the display would be discretionary. I guess the FDA must think reading signs is “mandatory” and everybody does that. This argument makes no sense and I’m surprised NAMA could not help convince the FDA otherwise.

Cold Food Machines

I saw significant challenges on complying with food machines. I made several arguments for ways to reduce the burden of compliance on these machines while providing consumers with better information. I argued the proposed rules should allow the operator to either:

a) Provide the total calories as vended, or

b) Provide calories for each item vended (i.e., itemize calories by separately packaged item).

It is without question if the mayonnaise is already on the sandwich, it would be included in the calories of the sandwich. While option “a” would be as the FDA originally proposed, option “b” would have provided the consumer with much richer information. It is richer information because the consumer may not realize the 428 calorie turkey sandwich with two packets of mayonnaise and two packets of mustard is actually 250 calories from the sandwich itself, 86 calories from each mayonnaise packet, and 3 calories from each mustard packet. With that richer information, the user can make an informed decision on which condiments to add and how many of each.

From an operator’s perspective, I knew that there are different ways we handle condiments. In some machines, we may include it with the product (packets wrapped with product), in some machines we may put in the shelf of the machine so users can grab what they want, and in other cases we may provide the condiments on a stand. The same sandwich would be filled in all cases, but the disclosure requirements for each would be different complicating compliance. I was trying to simplify this and give users better information.

The FDA had already proposed allowing similar method for hot beverage machines where operators can disclose separately for cream and sugar for example. I proposed the same approach for food machines as it is consistent and better for the consumer.

The FDA rejected my proposed changes.

The comment argued that such an approach for articles of food with multiple components, like sandwiches, would be consistent with FDA’s approach to covered vending machine foods that come in different varieties and flavors, such as hot beverages, which FDA concluded, in the preamble to the proposed rule, could be declared per option (e.g., cream for coffee). The comment asked that we revise the rule to give turnstile vending machines flexibility to declare calories separately for condiments sold with a food item. (Response 23) We disagree with the comment asking us to allow the vending machine operator to either: (1) Declare the total calories of a bundled vending machine food as vended, or (2) declare calories for each individual component of a bundled vending machine food as vended.

When the consumer affirmatively can choose the varieties or options dispensed with the food by pressing a selection button corresponding to each variety or option, the vending machine operator may display the calorie declarations for each variety or option in close proximity to the corresponding selection buttons for such varieties or options; however, when the consumer receives a bundled food item (such as a sandwich with a mayonnaise packet accompanying the sandwich), the consumer has selected to receive the food item as dispensed, and therefore, it is appropriate to label the calories for the entire bundled food item.

What’s fascinating is that the rationale is that if a consumer presses a button for “sugar” they are affirmatively choosing that, but in the case the consumer decides to open a mayonnaise packet and put on their sandwich, that is not an affirmative selection. Just because an operator dispensed the mayonnaise packet with the sandwich, the consumer apparently has no choice but to use it (or rather they don’t need to make an “affirmative” decision to use it). This logic is flawed and inconsistent, and treats the consumer as incompetent.

Signs

With regards to posting signs that have nutrition information, the FDA essentially stated that an operator cannot just post a sign that has all the possible products that could be in that machine. For example, the sign couldn’t be all the products the operator currently stocks in their warehouse or what’s on their menu plan. The sign must include only the products that would be in that particular machine, providing small exceptions if the product is sold-out or not currently stocked due to shortage.

We decline to revise § 101.8(c)(2)(ii)(A) to allow a vending machine operator to provide a sign adjacent to the vending machine that lists all possible articles of food that could be sold from the machine.

Therefore, we have revised § 101.8(c)(2)(ii)(A) to state that the list of covered vending machine food items on a sign must give calorie declarations for those articles of food that are sold from that particular vending machine.

Summary

I recognize that developing guidelines is no simple matter and that inevitably there will be someone upset as it is virtually impossible to develop guidelines in a way that pleases everyone. However, I would have hoped for guidelines that were internally consistent and allowed for practical applications, especially in the case where it is a win-win for operators and consumers.

*Full Disclosure: Paresh Patel is also the founder of VendScreen and PayRange

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