Nutrition Labeling Developments: Final Rule Regarding Vending Machine Calorie Labeling and Enforcement Discretion

Final rule regarding vending machine calorie labeling

Almost 5 years ago, as part of nutrition labeling requirements under the ACA, FDA issued a final rule which requires operators who own or operate 20 or more vending machines to disclose calorie information for food sold from vending machines.  Under that rule, vending machine operators may choose to rely on front-of-pack (FOP) labeling to disclose calories on food items that consumers can see in glass-front vending machines, provided the declaration for calories is at least 50% of the size of the largest printed matter on the label.  FDA had received several objections against the type size requirements for the FOP, arguing that the requirement was impractical, needlessly burdensome, and would disrupt existing voluntary industry FOP nutrition labeling programs.

In response, FDA proposed to revise the type size requirement to be linked to the size of net quantity of contents statement rather than to the largest printed matter on the front panel.  On October 28, 2019, FDA issued the final rule.  The final rule is largely the same as the proposed rule.  FDA made a minor revision clarifying that the size must be at least 150% of the required minimum size of the net contents statement, rather than 150% of the net contents statement as it actually appears on the label. FDA also clarified that only the numerical value indicating the total calories, rather than the word “calories,” is subject to the final rule’s type size requirements.

The compliance date for the new font size requirement is July 1, 2021. FDA also announced that it will continue its enforcement discretion with respect to the vending machine labeling requirements for gums, mints, and roll candy products sold in glass-front machines in packages that are too small to bear FOP labeling. FDA had previously announced its intention to exercise enforcement discretion until at least January 1, 2020, to allow for further consideration of the issue. In the final rule, FDA announced that it will continue to exercise enforcement discretion for these products on an on-going basis.

More enforcement discretion re nutrition labeling for retail foods

In case you missed it, at around the same time as FDA issued the final rule re FOP calorie labeling for vending machine, FDA “announced” enforcement discretion for nutrition labeling of foods sold at retail.

As readers of this blog know, FDA published amended (new) nutrition labeling regulations in 2016.  Changes were quite extensive, and FDA set the compliance date at July 26, 2018, for manufacturers with more than $10 million in annual sales (smaller companies were to get an additional year).  However, upon requests from industry and, in light of timing of FDA’s review of dietary fiber petitions, questions about added sugar labeling, etc., the compliance date was extended to Jan. 1, 2020.  Although this could have been enough time to revise labels, the timing of pertinent FDA guidance, FDA’s action in response to the Farm Bill prohibiting FDA from requiring the declaration of added sugars on single ingredient product, and some other issues caused industry to request for additional time to comply.  Last week, FDA responded to that request by updating its webpage “Industry Resources on the Changes to the Nutrition Facts Label,” questions and answers. This webpage now states that the agency does not intend to take enforcement actions related to the new nutrition labeling requirements for the first six months following the January 1, 2020 compliance date.  Specifically, FDA added the following Q&A:

I understand that the FDA has received multiple requests from manufacturers to provide additional time to comply with the new requirements. Do I still have to meet the January 1, 2020, compliance date?

The FDA has heard from several manufacturers and groups that more time may be needed to meet all of the requirements.  Therefore, during the first 6 months following the January 1, 2020, compliance date, FDA plans to work cooperatively with manufacturers to meet the new Nutrition Facts label requirements and will not focus on enforcement actions regarding these requirements during that time.

As we have mentioned before, the Industry Resources webpage provides useful information and anyone working on nutrition labeling should check out the page regularly.