Update: On April 27, the FDA filed notice that it will, in fact, delay the menu-labeling deadline and accept new comments on the rule from industry groups and other stakeholders. Our original story follows.
In recent weeks, the National Association of Convenience Stores, the National Grocers Association and the American Bakers Association have all cited the Trump administration's sweeping regulatory rollback to argue for the suspension of far-reaching Obama-era nutritional regulations.
Separately, a coalition of 17 other food industry groups have asked the administration to delay the compliance date of new nutrition labels.
None of these rules has taken effect, and they have long been opposed by business groups that say they are a burden to industry. They've been championed by advocates in the public health space, who argue that the changes are long overdue and needed to help people eat healthfully.
The first target in industry's sights is a requirement to include calorie counts on menus, which was set to take effect May 5. In a petition requesting that the FDA stay and reconsider the regulation, a lawyer for the National Association of Convenience Stores and the National Grocers Association argued: “The Final Rule is exactly the kind of regulation that the new Administration has opposed and/or halted since January 20 through various Presidential actions.”
The petition continued: “Petitioners believe the Final Rule falls squarely within the category of regulations disfavored by the administration — those that are unduly burdensome and costly, and do not provide commensurate benefits.”
Industry groups have also asked the FDA to delay, by three years, the rollout of new food labels that would put serving size and calorie information in a large, boldfaced font and call out the amount of sugars that have been added to a product — changes that had been due to take effect in July 2018 for large companies, and July 2019 for smaller ones.
Meanwhile, the American Bakers Association, a trade group that represents bread and snack companies, has asked the agency to rescind its new, stricter definition of dietary fiber, which had also been set to take effect in July 2018.
The requests are directed at an administration that has embarked on the largest regulatory rollback in decades, axing rules that oversaw big banks, oil companies and elementary schools. Several of the food industry’s petitions cite the rollback project as evidence that requirements such as menu labels should also be overruled.
A number of industry groups are anticipating that the FDA will become more business-friendly under the new secretary of Health Human Services, Tom Price. Price, a former congressman from Georgia, voted in favor of the Common Sense Nutrition Disclosure Act in 2016 — an industry-backed measure designed to undercut the menu-labeling rule.
President Trump’s pick for FDA commissioner, Scott Gottlieb, indicated during his confirmation hearing that he would be open to adjusting food and nutrition rules that passed under the Obama administration.
And in his written responses to questions from the Senate Committee on Health, Education, Labor and Pensions, Gottlieb said his FDA would seek to balance questions of nutrition disclosure against business interests.
“As a general matter, I support providing clear, accurate, and understandable information to American consumers to help inform healthy dietary choices,” Gottlieb wrote, according to documents obtained by The Washington Post. “ … However, I am mindful of the unique challenges that developing and communicating such information can pose, particularly on small, independent businesses.”
The menu-label provision, which passed as part of the Affordable Care Act in 2010, applies to a range of establishments that serve hot food, including restaurants, cafeterias, grocery stores and movie theaters, provided that they have 20 or more locations. Although the final regulations have been embraced by most restaurants, they’ve proven less popular with grocery and convenience stores, which say the rules do not account for the range of signage and food-service styles at their establishments.
They’ve asked the FDA to delay the planned rollout of the menu-labeling rule, pending a review of several issues — including whether grocery and convenience stores should even be included.
Separately, a number of food industry groups, led by American Pizza Community, have attempted to add language to the upcoming appropriations bill that would greatly loosen the restrictions for certain types of businesses. It would allow many pizza shops to list their calorie counts online only, for instance, and for many grocery and convenience stores to keep that information at the register.
“The regulations were written with restaurants in mind,” said Douglas Kantor, a lawyer for the grocery and convenience store industries. “Our stores aren't centralized or standardized like restaurants are, and the rules don't allow us enough flexibility.”
Industry has also requested a three-year delay on the scheduled July 2018 deadline for the new Nutrition Facts labels, which will emphasize calories and added sugars and which were famously championed by former first lady Michelle Obama. Food companies argue they can't redesign their labels without further guidance from the FDA. They have also asked that the agency coordinate its regulation with a pending label rule from the Agriculture Department, which will require that companies disclose GMO ingredients on food labels.
In mid-March, an alliance of 17 major food industry groups — including those representing the juice, dairy and sweetener industries — sent a letter to Price, urging a three-year delay, to 2021, “to ease regulatory burden on the economy.”
“Food and beverage manufacturers are committed to giving consumers information and tools they need to make informed choices, and that includes making the necessary changes to the Nutrition Facts Panel,” said Roger Lowe, a spokesman for the Grocery Manufacturers Association. “But … we believe there is a more efficient and less costly approach regulators can take to execute these label changes.”
The Trump administration appears receptive. Ray Starling, special assistant to the president for agriculture, trade and food assistance, told a group of journalists Monday that there was “a real active conversation” about delaying the label compliance date, Politico reported.
Industry groups say that they received encouraging signals from acting FDA Commissioner Stephen Ostroff and Center for Food Safety and Applied Nutrition Director Susan Mayne during a recent meeting.
“They have both said that one of the first things they’re going to do when they get a new commissioner is address the timing issue,” said MaryJoy Ballantyne, a food industry lawyer, speaking at a recent meeting of the GMA. “They were very flexible and willing to do that. The rumors are correct and we have heard from the horse’s mouth that they’re willing to move that date.”
Meanwhile, the baking industry has objected to an updated FDA rule for fiber, arguing that the new rule exceeds FDA's authority and places an undue cost on businesses. Under the new definition, companies can count a synthetic substance as a dietary fiber only if the FDA has determined that it has “physiological effects that are beneficial to human health” — a provision that will, for the time being at least, prevent many synthetic fibers from getting the designation. Plant-based fibers are not affected.
In many processed foods, the rule will have the effect of cutting the displayed amount of fiber — and raising the displayed number of carbohydrates. And it will require that manufacturers prove to FDA that their synthetic fibers are beneficial.
“FDA should adopt a less burdensome definition of dietary fiber,” lawyers for the American Bakers Association wrote in an April petition. The petition then goes on to cite Trump's Jan. 30 executive order, which requires government agencies to rescind two rules for each rule promulgated. (A representative of the ABA declined to comment.)
The FDA has given little indication of how it will respond to the industry requests.
In a statement, FDA spokeswoman Deborah Kotz said that the agency was aware of industry concerns about fiber, menu-labeling and the new Nutrition Facts panels, and that it was carefully reviewing them. At present, the compliance dates still stand.
With regard to menu labels — the most time-sensitive of the three issues flagged by industry — Kotz said that “the FDA is aware of the concerns on the part of many entities … the agency is taking these concerns seriously as it considers how to best fulfill its public health mission while minimizing regulatory burdens.”
Asked at the Grocery Manufacturers Association meeting whether he expected the administration’s anti-regulatory mood to delay food and nutrition rules, Mickey Parish, a senior adviser in the FDA’s Center for Food Safety and Applied Nutrition, said only that the FDA had “been asked to take a look at our regulations, we’ve been asked to review things, which we are doing, and we will continue to do that.”
He closed his slide deck with a quote from baseball player Yogi Berra: “Prediction is always difficult, especially about the future.” If there are questions about the future, he told the audience, “I don’t know, I’m not going to answer.”
Despite that lack of clarity, public health groups are mobilizing to oppose possible rollbacks and delays. On Monday, a coalition of 19 public health groups — including the American Diabetes Association and the American Cancer Society Cancer Action Network — sent a letter to leaders of the House and Senate appropriations committees, urging them to oppose any budget riders that would seek to hold up menu labeling.
Margo Wootan, the director of nutrition policy at the Center for Science in the Public Interest, has been making frequent visits to Capitol Hill, talking to congressional leadership and appropriations staff about the importance of menu labeling. The American Heart Association, meanwhile, has launched a social media campaign against delays to the Nutrition Facts label, encouraging supporters to tweet at Price and the FDA.
“It’s hard to tell what FDA will do,” Wootan said. “We do know that they’ve acknowledged the opposition.”
But Joseph Levitt, a partner at the law firm Hogan Lovells and a former director of the FDA’s Center for Food Safety and Applied Nutrition, said it would be premature to speculate about the agency's future actions.
“Every change in administration experiences an ending, a period of limbo, and a beginning,” Levitt said. “Part of the Obama administration’s ending involved getting these regulations out. Now we’re in limbo. And the new beginning, well — that will start when we have a new commissioner.”
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