FDA Proposes Amendment to Vending Labeling Rule Requirement for Font Size

In 2010, the Federal Food, Drug, and Cosmetic Act (FDC Act) was amended to include a requirement that certain vending machine operators engaged in operating and owning 20 or more vending machines provide calorie declarations for certain articles of food sold from vending machines. FDA issued a final implementing regulation on Dec. 1, 2014 with a compliance date of Dec. 1, 2016.

The final regulation requires that a prospective purchaser of a product from a vending machine must be provided with calorie information. For glass-front vending machines, the regulation provides the option of front of package (FOP) declaration of the calorie content. In that case, the regulation requires that the “visible nutrition information must be clear and conspicuous and able to be easily read on the article of food while in the vending machine, in a type size at least 50 percent of the size of the largest printed matter on the label and with sufficient color and contrasting background to other print on the label to permit the perspective purchaser to clearly distinguish the information.” FDA received many comments in response to the proposal for this requirement. Even after the publication of the final rule, FDA received comments that the requirement presented technical challenges.

In the Federal Register of Aug. 1, 2016, FDA extended the compliance date for the type size provision to July 26, 2018 to coincide with the original compliance date for the new nutrition labeling regulations. The extension applied only to those products in glass front vending machines that provide FOP calorie disclosure that complied with the vending machine labeling rule, except that the disclosure was not 50 percent of the size of the largest print on the label.

On July 12, 2018, FDA issued a proposal to amend the type size provision to require that the size is at least 150% of the size of the net quantity of contents. FDA invites comments to this proposal.

In addition, FDA invites “comment and data on the percentage of food products commonly sold in glass front vending machines bearing voluntary FOP calorie labeling, and for those products that currently bear voluntary FOP calorie labeling, the type size of the FOP calorie labeling used on the products.”

FDA also requests comments on two alternative amendments to the current provision, namely:

1. Require that calories are declared in a font at least 100% of the size of the net quantity of contents declaration.
2. Not specify any size requirement (an option FDA previously considered and rejected).

FDA proposes that any resulting final rule will have an effective date of 30 days after the date of publication and a compliance date of Jan. 1, 2020.

Written comments must be submitted by Sept. 25, 2018.