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Front-Of-Pack Font-Size Extension Does Not Exempt Glassfront Vending Machines From Dec. 1 Calorie-Disclosure Deadline

Posted On: 10/31/2016

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TAGS: vending machine calorie disclosure, Food and Drug Administration, glassfront vending machines, FDA FOP extension, Eric Dell, NAMA, National Automatic Merchandising Association, bulk vending, vending machine displays

vending, calorie disclosure

WASHINGTON -- The Food and Drug Administration announced in July that it was providing flexibility for certain foods sold through glassfront vending machines. In this announcement, the FDA used the term "extension." The use of this term caused some in the industry to misinterpret that the Dec. 1, 2016, date of compliance for calorie disclosure for food and beverages sold from glassfront vending machines was extended to July 2018. The compliance date was not extended for glassfronts, emphasized Eric Dell, the National Automatic Merchandising Association's senior vice-president of government affairs.

The FDA's notice did not extend the compliance date for operators, however it did provide very important flexibility for the font-size requirement for front-of-pack (FOP) calorie disclosure for food and beverages sold in glassfront vending machines. The update made it more reasonable for operators and food manufacturers to meet the disclosure requirement and created ease of compliance and significant savings to operators and suppliers and food manufacturers, Dell explained.

NAMA estimates that this flexibility, for which it and other trade groups lobbied, saved vending operators between $50 and $300 per vending machine in compliance costs.

To further reduce any confusion, Dell said operators of 20 or more machines still must disclose calorie information for all affected products in their glassfront machines by Dec. 1 of this year, as well as for equipment that vends hot and cold beverages, refrigerated and frozen foods, and bulk items.

The final rule specifies that calories can be displayed on a product's package front, sign (in/on or adjacent to the vending machine) or electronic display.

The only thing that's changed for operators with the FDA's extension is that they can use FOP labeling that's already on packages -- regardless of font size -- to meet the Dec. 1 compliance deadline in glassfront machines, provided the calorie declarations are "clear and conspicuous, and placed prominently." A simple guide to follow is whether or not the calorie declaration is visible to the purchaser at the point of purchase.

For operators planning to use FOP labeling, calorie information for any items in the machine that is not disclosed on the front of pack must be provided by approved signage or digital screen. Dell estimates that a large majority of products currently sold through glassfront snack and beverage vending machines already have front-of-pack calorie declarations, making it a simple and cost-effective way to comply.

Dell explained that the reason for FDA's July announcement to revisit front-of-pack font size was to enable the vending industry and FDA to reexamine the rule's specifications, due to the difficulty of updating the final rule font size requirement (50% of the largest printed matter on the front-of-pack). Current voluntary food and beverage industry front-of-pack labeling programs display calorie information in type sizes ranging from 100% to 150% of the content statements' type sizes.

Additionally, NAMA's government affairs SVP stated that FDA's recent compliance guidance clarifies the agency's understanding of FOP disclosure on products with multiple servings, such as "sharing sizes." The FDA's guidance provides that if the disclosure reads "x calories per serving and y servings per package," it is compliant. FDA's rules further explain that having the FOP declaration include both information on calories per serving and servings per package allows the consumer to determine the total calories. Many FOP labels for multi-serve packages already provide such information, he noted.

Gum & Mints

The FDA did extend the compliance date for small-package gum, mints and roll candies to July 26, 2018, to allow time to further consider means by which such products might be made compliant, which pose a challenge when it comes to providing FOP information. This extension means operators do not have to disclose calorie information for these products until then, but FDA is encouraging those using digital signage to include them. Dell said NAMA is working with manufacturers of these products to create a solution, and expects to announce one soon that will make it easy for operators to disclose these calories through signage provided by manufacturers.

The FDA rule allows vending operators to use one sign with calorie declarations for all of the covered vending machine food or a sign for each covered food displayed, or a combination of the two, as long as the sign is in close proximity to the food or selection button.

A calorie declaration on a sign adjacent to a vending machine must be in a type size large enough to render it likely to be read and understood by the prospective purchaser under customary conditions of purchase and use and visible at the same time the food -- its name, price, selection button or selection number -- is visible, Dell explained.

When the calorie declaration is in or on the vending machine, it must be in a type size no smaller than the name of the food on the machine (not the label), selection number or price of the food as displayed on the vending machine, whichever is smallest, and with the same prominence, Dell said.

The rule does not specify how a sign declaring calories is to be affixed to a vending machine or what materials are to be used for the sign. Regardless of the material used for the sign, compliance with the calorie labeling requirements is contingent on the sign being in close proximity to each article of food or selection button. In order for nutrition information to be "visible" at the point of purchase, the information must be clear, conspicuous and legible by a prospective purchaser. Nutrition information in brochures or booklets can be easily detached, lost or otherwise separated from a vending machine and, therefore, they are not allowed to meet the requirements of the final rule.

Dell emphasized that the only nutrient claim to be required by the rule is calories. Labeling of genetically engineered foods and other ingredients, such as trans fat, is not required by this rule. However, states and localities may require other specific forms of labeling on food sold from vending machines.

As stated earlier, calorie disclosure applies to both closed front and glassfront beverage vending machines. Dell suggested that operators contact beverage-manufacturing companies to obtain flavor strips and snipes to disclose calories on these machines.

Vended foods and beverages that contain insignificant nutrient or caloric content, such as bottled water, are not exempt from the calorie declaration requirements of the rule, and therefore calories must be disclosed for these products.

Hot beverage vending machines are covered by the rule, which allows vending machine operators to declare calories per option or for the final vended products. For example, if a vending machine dispenses coffee products with options for adding skim milk, whole milk, cream, sugar or sugar substitute, the vending machine operator could provide calorie declarations for each of those added options individually.

Operators who vend fresh food that consists of more than one separately packaged component but is sold as one unit (e.g., a sandwich dispensed with a single-serving packet of condiment), must be aware that the calorie declaration for the food must include the total calories present in the food and in condiment packs. Operators are allowed to obtain the necessary calorie information from the food package's Nutrition Facts label, the manufacturer or supplier of the food, nutrient databases, cookbooks or laboratory analyses.

An article of food sold from a vending machine automatically meets the rule, and is exempt from any other means of disclosure, if the prospective purchaser can view the calories, serving size and servings per container listed in the Nutrition Facts label without any obstruction.

The calorie-disclosure rule for food items sold from vending machines does not apply to micromarkets or traditional office coffee service operations with brewers that don't accept a form of payment. However, if a menu board is used in a micromarket, operators may open themselves up to requirements for the calorie disclosure included in FDA's menu-labeling rules, Dell cautioned.

FDA's final calorie-disclosure rule also includes bulk vending machines that dispense items such as gumballs and nuts. | READ MORE

Candy Cranes And Amusement Machines

Amusement machines that sometimes dispense candy or other edible items as part of a game or other nonfood-related activity are not covered and do not count toward the "20 or more" machines threshold for determining whether a vending machine operator must comply.

The rule also requires operators to post their contact information on vending machines covered by it. The contact information must list three items:

1. Operator's name
2. Operator's telephone number
3. Operator's mailing address or email address.

The business information must be readable and placed on the face of the vending machine, or included with the calorie declarations on the sign in, on or adjacent to the vending machine. If state rules or other licensing requirements for vending machine operators require some but not all of that information, then the operator can simply display the remaining contact information in a consistent manner.

FDA expects vending operators to generate and maintain a record of the information on which they rely to determine the total calories posted for vending machine food. FDA encourages operators to be prepared to share that information upon its request during an inspection if it's needed to determine whether the calorie declarations posted by a vending machine operator are accurate.

Failure to comply with this rule may result in enforcement action. For example, introducing, delivering for introduction or receiving a misbranded food in or into interstate commerce, or misbranding a food while it is in interstate commerce or being held for sale after shipment in interstate commerce, is a prohibited act, carrying criminal penalties under the federal Food Drug & Cosmetic Act. In addition, the U.S. government can bring a civil action in federal court to enjoin a person who commits a prohibited act.

Before those actions are taken, consumers are expected to contact the FDA to file a formal complaint. The FDA's enforcement process includes contacting vending operators who are alleged to be out of compliance and providing them with time to respond and resolve the issue. Furthermore, during NAMA's Fly-In lobbying event in the nation's capital last July, the FDA stated that the first year of enforcement (December 2016-December 2017) will be focused on education and outreach. During that time, the FDA said it will be working flexibly and cooperatively with the industry to assist them with compliance.

Dell emphasized that the FDA's willingness to work with vending operators is not an indication that they should not comply. It is quite the opposite. Operators should comply by Dec. 1, 2016, and rely on the FDA's cooperative attitude for issues in which the industry is attempting to comply, but is not because of a technical misunderstanding.