FDA Says it Will Take Vending Machine Owners an Extra 14 Million Hours a Year to Comply with Obamacare Calorie Mandate

November 8, 2010 - 5:16 PM

Vending Machine

(AP photo)

(CNSNews.com) – The U.S. Food and Drug Administration estimates that it will take the food service industry 14 million additional hours each year to comply with a new regulation that mandates chain restaurants and vending machine operators label the products they sell with a calorie count in a place visible to the consumer.

Most of the burden of the regulation, which is buried in President Obama’s 2,000 page health-care reform bill, will fall on the vending industry.

In the Nov. 5 edition of the Federal Register, the FDA estimates “a total of 14,068,808 recurring hours, with nearly all of these for vending machine operators, including 31,408 recurring hours for recordkeeping and 14,037,400 recurring hours for third party disclosure” in conjunction with the regulation.

The recordkeeping element includes recording and keeping track of the calorie content of each item offered in a vending machine, while the vast majority of the time will be spent on third party disclosure -- actually communicating that content to the consumer.

The FDA says that time will have to be invested again each year, as the labels will likely “have a relatively short life and the mix of product in a machine will change over time.”

Ned Monroe, the senior vice president of government affairs for the National Automatic Merchandising Association (NAMA), called the required time investment “absurd” and “unfair.”

“Our industry has always understood that consumers need access to product nutritional information, but requiring an industry to invest 14 million hours annually is absurd and sure to kill jobs,” he said. “We are opposed to the colossal burden these regulations impose on our industry and this report just confirms what an enormous and unfair burden it truly is.”

As CNSNews.com previously reported, Section 4205 of the Patient Protection and Affordable Care Act (PPACA) says companies with 20 or more restaurants or vending machines must disclose nutrition content for standard menu items, and that for vending machines in particular, the company “shall provide a sign in close proximity to each article of food or the selection button that includes a clear and conspicuous statement disclosing the number of calories contained in the article.”

Eight months after the bill was signed, however, the FDA is “still trying to get their arms around” what guidance to give operators on how to implement that rule, Monroe said. 

While full guidelines still have not been issued, the latest entry in the Federal Register does provide two basic suggestions for disclosing calories.

“Because there is wide variation in the kinds of vending machines used--in materials, display, mechanism--there will likely be a variety of solutions,” the FDA writes. “On the high end, a calorie display that is integrated with the graphics on the machine may cost several hundred dollars or more. On the low end, a set of calorie stickers affixed to the front of the machine would cost at most a few dollars per machine.

“Given the low margins in the vending machine industry, and given that nearly all of the regulated operators will be small businesses, FDA believes that almost all operators will, at least initially, choose the sticker option. In the long run, the manufacturers of vending machines, and the larger vending machine operators, such as the soft drink companies, may use the more integrated, and thus expensive, solution.”

The industry, which is dominated by small businesses, continues to question the need for the new regulation.

Monroe told CNSNews.com in August that he believes most customers “recognize the snacks and the drinks have the nutritional facts panel already on the packaging,” and that most people understand the relative nutritional values associated with the often familiar products.

“People that purchase items out of vending machines -- it’s not the first time they’ve tried the product, so they understand that there are certain calories in a chocolate treat versus a honey bun versus a baked chip.”

In doing its own calculations, NAMA has determined that that the FDA’s estimate may still be underestimating the time investment necessary, Monroe said.

“It’s even more troubling that after reviewing the calculations in the report the 14 million hour estimate might not even be enough,” he said. “The implementation for this policy is completely wrong. It’s obvious that the FDA needs to rethink this approach completely. In this economy where our small business members are struggling to survive, they can’t afford to spend 14 million hours each year to comply with this new regulation.”

While the calorie-disclosure regulation technically went into effect when President Obama signed the health-care law on March 23, the FDA said it would “refrain” from enforcing the provision until it publishes the final guidelines. Those will be ready in December.