FDA Still Pushing Obama-Era Rule Despite Deep Opposition

New Food Rule
"Getting pizza was a bad idea"

Several of the small business groups, pizza chains, and several of the grocery associations are now worried that the Trump administration is moving ahead with their ambiguous Obamacare rule that had mandated the calorie counts on their menus.

The Food and Drug Administration had delayed the compliance dates of this peculiar regulation earlier this year until May 2018, giving these groups little hope that the controversial parts of the rule, such as the 171-word definition of a menu that includes food advertisements and further criminal penalties for “misbranding” the food with the wrong calorie counts, would be clarified by the lawmakers.

However, the FDA commissioner Scott Gottlieb had said last month that the administration would not be reopening the rule for any further changes. Instead, the FDA will have to issue nonbinding guidance to these companies to address their “legitimate concerns about the regulation as it was drafted.”

“It is going through the clearance right now, we are going to issue the guidance at some point … in the fall and that will keep us on schedule to implement that on time in May,” Gottlieb had said.

Previous guidance did not address the core concerns with the rules and made these matters worse. The final guidance under the Obama administration had expanded the definition of menu to a huge 171 words. It included anything “from which a customer makes an order selection,” which would apply to all the advertisement material and discount coupons.

Groups such as the American Pizza Community, which is essentially a coalition of pizza chains representing the Domino’s, Papa John’s, and others high end pizza chains, and the Food Marketing Institutes, which represents the food retailers, have voiced their similar concerns that the FDA has not yet adequately addressed the thousands of comments and concerns that were submitted to the government on how to fix the rule in order to help or facilitate them.

When the Trump administration had delayed the compliance dates, it had opened up the regulation for public comments for 60 days. Then-HHS Secretary Tom Price had called the Obama regulation as it stood to be “unwise and unhelpful.” The FDA said that the retailers have “raised concerns about how the rule lacks flexibility,” and that the agency received several questions on “how to distinguish a menu” from the advertisements.

Shortly after the comment period had ended, Gottlieb said that the agency was already drafting the guidance for the rule. “The administration got off to a great start,” Robert Rosado, director of food and health policy at the Food Marketing Institute had said. “Now we’re getting concerned because we submitted [30 pages worth of comments] at the beginning of August, and then just a few weeks later, there have been some comments coming out of FDA that seem to give us the impression that they’ve veered off this path and instead of reviewing the rule and making some changes to the rule, they’re talking about things like guidance.”

“While that may sound good in Washington speak, the problem is that we’ve been through guidance before with the previous FDA team, and the guidance has just been cut and paste of the same,” Rosado continued. “Frankly, we’re concerned that this issue and this process has been hijacked a little bit.”

Domino’s franchisee Chris Reisch, who had worked his way up from a simple delivery driver when he was stationed in the Army at Ft. Myer to own his own 10 stores and employ 250 people, said he has real concerns about the new regulation including the criminal penalties for mislabeling the calorie counts on a pepperoni pizza.

“You may say, ‘Well, that’s really never going to happen that someone’s going to get a felony for overtopping pepperoni on a pizza,'” he said. “Until it happens. If you say, that’s never going to happen, then why is it written into the law?”

As written clearly, the violations of the regulation can carry civil and criminal penalties of up to a $1,000 fine, one year in prison, or possibly both.

“Giving guidance really isn’t going to be helpful for us in our situation. And as a small business owner, it’s scary,” Reisch had said. “I want things cut and dry, I want the law changed so it’s easily managed. And we don’t want it removed. We already provide calorie counts online. We have a 21st century solution to the problem. The majority of our customers now place their orders electronically. They’re placing their orders in the means we have it available.”