November 8, 2017

HEALTH: FDA Releases New Guidance on Calorie Rule. “Does regulation apply to beer? ‘It depends’.”

The Food and Drug Administration on Tuesday released draft guidance to help chain restaurants and groceries comply with an Obamacare regulation that requires calorie labeling on menus.

FDA commissioner Scott Gottlieb said the guidance is “practical, efficient and sustainable,” in an attempt to alleviate concerns from pizza chains and grocers that the government was moving forward with an onerous Obama administration rule that carries criminal penalties for “misbranding” food.

Questions about the rule remain, since the guidance only contains “nonbinding recommendations.” In addition, chain restaurants could be confused by language in the guidance related to what draft beers must be labeled. The FDA says, “It depends.”

Complying with “It depends” could be problematical, to say the least.


Pizza chains represented by the American Pizza Community—including Domino’s, Papa John’s, and Little Caesars—raised the issue that pizza can contain up to a billion topping combinations, making the rule unworkable unless they can comply online. Domino’s has said the vast majority of their orders are already placed online, where customers can use a calorie tracker for any pizza they order.

The new FDA guidance does not allow pizza chains to comply online but attempts to provide more flexibility with allowing companies to use calorie ranges.

The regulatory state marches on.

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