Speeches & Floor Statements
Posted on July 26, 2018
I agree with my colleague, Senator Blunt, I am disappointed Democrats blocked these common-sense provisions that would help the hundreds of thousands of restaurants, grocery stores, convenience stores, pizza stores, and other food retailers as they work to comply with the Food and Drug Administration’s menu labeling rule.
When Democrats passed the Affordable Care Act in 2010, they included a provision mandating nutrition labeling in restaurants and food retailers with over 20 stores nationwide.
The proposed rule was published in December 2014 and the final menu labeling rule went into effect on May 7, 2018.
The final rule requires restaurants nationwide to display calories on menus and menu boards and have additional nutrition information available upon request.Senator Blunt and I support consumers having access to nutrition information to make healthier, more informed dietary choices for themselves and their families.
And while I commend FDA for addressing concerns raised during the process in the final rule, a few significant problems remain unaddressed, including:
Employees being subject to criminal penalties for inconsistencies in calorie information;
A clear amount of time for restaurants to correct violations before enforcement;
Restaurants being subject to frivolous civil lawsuits for minor violations; and
Flexibility for restaurants where a majority of orders are placed online.
To address these concerns, Senators Blunt and King here in the Senate, and a bipartisan group in the House, introduced the bipartisan Common Sense Nutrition Disclosure Act to make the menu labeling rule more workable for restaurants and to make access to nutrition information easier for customers.
The Common Sense Nutrition Disclosure Act, led by Reps. Cathy McMorris Rodgers and Loretta Sanchez, passed the House twice, both times with strong bipartisan votes, most recently in February with a vote of 266-157, with 152 Republicans and 32 Democrats in support.
However, after Senate Democrats raised concerns that the House bill would further delay implementation of the rule, Senator Blunt and I worked out a targeted solution to help give restaurants the flexibility and certainty they need to comply with the rule, without delaying implementation or enforcement.
Our substitute amendment to the Common Sense Nutrition Disclosure Act has four provisions:
- Clarifies legal liability:
If I’m a 21-year-old manager at the Chick-fil-A in Chattanooga, Tennessee, I would be pretty hesitant to sign a statement, as currently required by the rule, that could subject me to criminal and financial penalties because one of my employees put extra slices of cheese on a sandwich.
Today, the rule requires a restaurant manager to certify that the restaurant is making menu items a certain way to meet the posted nutritional values.
Our amendment changes that, and no longer puts an individual employee on the hook for a meal item that doesn’t match its posted calorie count. Our amendment maintains the requirement for restaurant headquarters to certify that nutrient analysis of menu items is complete and accurate.
It is nearly impossible for menu items to be prepared in precisely the same way every time and individuals should not be at risk of criminal and financial penalties based on small differences in how menu items are prepared.
2. Establishes a clear timeline for corrective actions:
If FDA finds a violation of a sign out of place or discrepancies in the calorie content, it is reasonable for a store to have a clear timeframe to fully correct the violation without being subject to penalties.
This provision would clarify restaurants have 30 days to correct violations and if, after 30 days the issue is not resolved, FDA can move forward with enforcement action.
- Protects restaurants from frivolous lawsuits for minor violations:
This clarifies that if a consumer determines a chicken sandwich labeled as 500 calories is actually 550 calories – the federal, state, or local enforcement authorities can take action, but prevents the consumer from suing the restaurant for damages.
This will protect restaurants from facing frivolous private or class action lawsuits that result in years of litigation and settlements on minor discrepancies that rarely benefit the consumers.
Given the surge of food labeling class action lawsuits in recent years, including claims on the amount of air in potato chip bags, ice in iced coffee, the use of the word “natural,” or “Froot Loops” cereal not containing fruit.
Without commonsense protections, it is hard to see how menu labeling won’t be the next wave of claims based on the amount of ketchup is on your burger.
- Allows access to nutrition information online:
If you are ordering a pizza for your family, there is a good chance you are placing that order online or on a mobile app and it is being delivered to your home.
Restaurants with over 75 percent of orders placed online should not have to invest in maintaining and updating in-store menu boards only a small portion of customers will ever use.
This provision allows these restaurants to display nutrition information online where it will be more useful for customers and keep up with how Americans order food.
The FDA Commissioner, Scott Gottlieb, who supports the final regulation, has confirmed in a letter that this limited set of provisions will not affect implementation of, or compliance with, the menu labeling final rule.
The intent of the FDA menu labeling rule was about increasing consumer access to nutrition information -- not about finding minor problems to trigger fines and penalties on local businesses.
These provisions are based on bipartisan legislation introduced in both chambers and passed twice in the House to accommodate diverse business models in the food industry and provide certainty to restaurants and their employees.
These four provisions were carefully negotiated to address concerns of Democrat members, to ensure Americans will still be able to access nutrition information, and will not delay or stop FDA’s ability to implement or enforce the menu labeling requirements.
I am disappointed my Democrats colleagues rejected these common-sense provisions to help restaurants provide calorie counts for Americans.