Obamacare’s Calorie-Count Requirement Gets Delayed

Diners can gorge themselves in blissful ignorance a little longer as FDA pushes back labeling until year’s end.

National Journal
Clara Ritger
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Clara Ritger
Feb. 28, 2014, 7:42 a.m.

The Food and Drug Ad­min­is­tra­tion has missed yet an­oth­er self-im­posed dead­line to get out fi­nal rules on the menu cal­or­ie-la­beling re­quire­ment un­der Obama­care.

The agency had told mem­bers of the food re­tail in­dustry it should ex­pect fi­nal guidelines in Feb­ru­ary, and the top­ic ap­peared to be on the Of­fice of Man­age­ment and Budget’s agenda for this month. But the rules are nowhere close to the fin­ish line, and the FDA is now de­clin­ing in­ter­view re­quests about the cal­or­ie-la­beling rules al­to­geth­er.

“We are cur­rently re­view­ing com­ments sub­mit­ted in re­sponse to the pro­posed rules and hope to is­sue fi­nal reg­u­la­tions by the end of the year,” said FDA spokes­wo­man Theresa Eis­en­man in an email.

The Af­ford­able Care Act, signed in­to law in March 2010, re­quires food es­tab­lish­ments to post cal­or­ies on menus and drive-through signs, in an ef­fort to make con­sumers more aware of the nu­tri­tion in­form­a­tion in the food they eat.

Which food re­tail­ers are sub­ject to the law, however, has be­come a heated de­bate that FDA Com­mis­sion­er Mar­garet Ham­burg has pre­vi­ously called “the most com­plic­ated” part of writ­ing the fi­nal rules.

“There are very, very strong opin­ions and power­ful voices both on the con­sumer and pub­lic health side and on the in­dustry side, and we have worked very hard to sort of fig­ure out what really makes sense and also what is im­ple­ment­able,” Ham­burg said in an in­ter­view with the As­so­ci­ated Press a year ago.

The FDA is­sued pro­posed rules in April 2011. More than 900 com­ments were sub­mit­ted to the agency, which has held meet­ings with key stake­hold­ers about how the re­quire­ment would im­pact food chains, mom-and-pop diners, and even su­per­mar­kets selling pre­pared deli items.

Nearly three years — and mul­tiple, self-im­posed dead­lines — have passed since the FDA is­sued the pro­posed guidelines. The FDA had planned to is­sue fi­nal rules at the end of 2011, with busi­nesses ex­pec­ted to be­gin com­ply­ing in 2012. In March 2013, Ham­burg told the As­so­ci­ated Press the agency was in the fi­nal stages of writ­ing the reg­u­la­tions, with a tent­at­ive plan to is­sue them that spring. Spring came and went with no rules, and they were next ex­pec­ted to be re­leased in Septem­ber 2013. Still without rules, Ham­burg said at an event in Novem­ber that they would be re­leased “soon.”

Some res­taur­ants have star­ted put­ting up cal­or­ies vol­un­tar­ily. Oth­ers are re­quired to by loc­al or­din­ances, such as the one in New York City, where res­taur­ants and cof­fee shops have been post­ing cal­or­ie counts since mid-2008. But un­til the FDA gets its guidelines out the door, con­sumers across the coun­try will con­tin­ue to wait to see nu­tri­tion­al in­form­a­tion pos­ted in all places where they buy and eat meals.

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