Neal D. Fortin

Food Regulation


Скачать книгу

the food or meal meets the nutrient requirements for the claim. Presentation of nutrition labeling may be in various forms, including those provided in Sec. 101.45 and other reasonable means.44

      * * * * *

      DISCUSSION QUESTION

      1 4.4. What if FDA wrote the Restaurant Regulations but Didn’t Enforce Them? Note that in Public Citizen and CSPI v. Shalala, the FDA’s action directly conflicted with an unambiguous requirement in the statute. Congress said restaurants were not exempt from NLEA, but then FDA said that restaurants were exempt. What would have been the result if FDA had written the regulations for restaurants but then said it would not have the resources to enforce them? What if FDA had a rational plan for prioritization of resources to important health and safety concerns, and would a court be likely to overrule the agency’s decision? See ch. 20, sec. 20.5, Administrative Discretion.

      The public policy reasoning behind these requirements is summarized as follows:

      * * * * *

      In addition, state and local governments had been enacting their own laws requiring nutrition labeling on menus and menu boards to fill the vacuum in the absence of federal requirements. These state and local requirements vary significantly both in the requirements and regarding the establishments to which they apply. This lack of national uniformity created impetus for Congress to step in with a federal law.

      FDA issued two food labeling regulations regarding calorie labeling on menus and vending machines. These regulations define the terms and details of which establishments are affected and how the requirements are to be carried out. These regulation titles are as follows:

       Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments47

       Calorie Labeling of Articles of Food in Vending Machines48

      4.6.1 Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments

       The number of calories in each standard menu item on a menu or menu board (the calorie disclosure must be “clearly associated with” and “adjacent to” the name of the standard menu item).

       A statement on the menu or menu board that puts the calorie information in the context of a recommended total daily caloric intake.

       Additional nutrition information for standard menu items in written form (“written nutrition information”), which must be made available to consumers upon request.

       A “prominent, clear, and conspicuous” statement on the menu or menu board regarding the availability of the written nutrition information.

       The number of calories (per item or per serving) adjacent to self‐service food and food on display. These foods include food sold at salad bars, buffet lines, cafeteria lines or similar self‐service facilities, and self‐service beverages and food on display that is visible to consumers.

      The labeling requirements only apply to foods that are standard menu items. The requirements for nutritional labeling are in two parts. The information that must be listed on the menu or menu board is the following:

       The number of calories.51

       The following statement, “2,000 calories a day is used for general nutrition advice, but individual calorie needs vary.”52

       The following statement, “Additional nutrition information available upon request.”53

      1 total calories (cal);

      2 calories from fat (fat cal);

      3 total fat (g);

      4 saturated fat (g);

      5 trans fat (g);

      6 cholesterol (mg);

      7 sodium (mg);

      8 total carbohydrate (g);

      9 dietary fiber (g);

      10 sugars (g); and

      11 protein (g).

      The regulation provides considerable detail on the placement, sizes of type, exceptions, and special circumstances. Therefore, establishments covered under this requirement are advised to refer to the rule at 21 C.F.R. § 101.11.

      4.6.2 Calorie Labeling of Articles of Food in Vending Machines