[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
EXAMINING H.R. 2017, THE COMMON SENSE NUTRITION DISCLOSURE ACT OF 2015
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON HEALTH
OF THE
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
JUNE 4, 2015
__________
Serial No. 114-51
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Printed for the use of the Committee on Energy and Commerce
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___________
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COMMITTEE ON ENERGY AND COMMERCE
FRED UPTON, Michigan
Chairman
JOE BARTON, Texas FRANK PALLONE, Jr., New Jersey
Chairman Emeritus Ranking Member
ED WHITFIELD, Kentucky BOBBY L. RUSH, Illinois
JOHN SHIMKUS, Illinois ANNA G. ESHOO, California
JOSEPH R. PITTS, Pennsylvania ELIOT L. ENGEL, New York
GREG WALDEN, Oregon GENE GREEN, Texas
TIM MURPHY, Pennsylvania DIANA DeGETTE, Colorado
MICHAEL C. BURGESS, Texas LOIS CAPPS, California
MARSHA BLACKBURN, Tennessee MICHAEL F. DOYLE, Pennsylvania
Vice Chairman JANICE D. SCHAKOWSKY, Illinois
STEVE SCALISE, Louisiana G.K. BUTTERFIELD, North Carolina
ROBERT E. LATTA, Ohio DORIS O. MATSUI, California
CATHY McMORRIS RODGERS, Washington KATHY CASTOR, Florida
GREGG HARPER, Mississippi JOHN P. SARBANES, Maryland
LEONARD LANCE, New Jersey JERRY McNERNEY, California
BRETT GUTHRIE, Kentucky PETER WELCH, Vermont
PETE OLSON, Texas BEN RAY LUJAN, New Mexico
DAVID B. McKINLEY, West Virginia PAUL TONKO, New York
MIKE POMPEO, Kansas JOHN A. YARMUTH, Kentucky
ADAM KINZINGER, Illinois YVETTE D. CLARKE, New York
H. MORGAN GRIFFITH, Virginia DAVID LOEBSACK, Iowa
GUS M. BILIRAKIS, Florida KURT SCHRADER, Oregon
BILL JOHNSON, Ohio JOSEPH P. KENNEDY, III,
BILLY LONG, Missouri Massachusetts
RENEE L. ELLMERS, North Carolina TONY CARDENAS, California
LARRY BUCSHON, Indiana
BILL FLORES, Texas
SUSAN W. BROOKS, Indiana
MARKWAYNE MULLIN, Oklahoma
RICHARD HUDSON, North Carolina
CHRIS COLLINS, New York
KEVIN CRAMER, North Dakota
Subcommittee on Health
JOSEPH R. PITTS, Pennsylvania
Chairman
BRETT GUTHRIE, Kentucky GENE GREEN, Texas
Vice Chairman Ranking Member
ED WHITFIELD, Kentucky ELIOT L. ENGEL, New York
JOHN SHIMKUS, Illinois LOIS CAPPS, California
TIM MURPHY, Pennsylvania JANICE D. SCHAKOWSKY, Illinois
MICHAEL C. BURGESS, Texas G.K. BUTTERFIELD, North Carolina
MARSHA BLACKBURN, Tennessee KATHY CASTOR, Florida
CATHY McMORRIS RODGERS, Washington JOHN P. SARBANES, Maryland
LEONARD LANCE, New Jersey DORIS O. MATSUI, California
H. MORGAN GRIFFITH, Virginia BEN RAY LUJAN, New Mexico
GUS M. BILIRAKIS, Florida KURT SCHRADER, Oregon
BILLY LONG, Missouri JOSEPH P. KENNEDY, III,
RENEE L. ELLMERS, North Carolina Massachusetts
LARRY BUCSHON, Indiana TONY CARDENAS, California
SUSAN W. BROOKS, Indiana FRANK PALLONE, Jr., New Jersey (ex
CHRIS COLLINS, New York officio)
JOE BARTON, Texas
FRED UPTON, Michigan (ex officio)
C O N T E N T S
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Page
Hon. Joseph R. Pitts, a Representative in Congress from the
Commonwealth of Pennsylvania, opening statement................ 1
Prepared statement........................................... 2
Hon. Gene Green, a Representative in Congress from the State of
Texas, opening statement....................................... 3
Hon. Fred Upton, a Representative in Congress from the State of
Michigan, opening statement.................................... 5
Prepared statement........................................... 5
Hon. Frank Pallone, Jr., a Representative in Congress from the
State of New Jersey, opening statement......................... 16
Witnesses
Sonja Yates Hubbard, Chief Executive Officer, E-Z Mart Stores,
Inc., on behalf of the National Association of Convenience
Stores......................................................... 19
Prepared statement........................................... 21
Israel O'Quinn, Director of Strategic Initiatives, Food City, on
behalf of the Food Marketing Institute......................... 30
Prepared statement........................................... 32
Lynn Liddle, Executive Vice President, Communications,
Legislative Affairs and Investor Relations, on behalf of
American Pizza Community....................................... 37
Prepared statement........................................... 39
Karen Raskopf, Chief Communications Officer, Dunkin Brand, Inc... 44
Prepared statement........................................... 46
Margo G. Wootan, D.Sc., Director, Nutrition Policy, Center for
Science in the Public Interest................................. 50
Prepared statement........................................... 52
Answers to submitted questions............................... 96
Submitted Material
H.R. 2017........................................................ 7
Letter of June 3, 2015, from Representative DeLauro to the
committee, submitted by Mr. Pallone............................ 82
Statement of the Food Marketing Institute, submitted by Mr. Pitts 84
Letter of May 27, 2015, from House members to the FDA, submitted
by Mr. Shrader................................................. 86
Statement of Wegmans, submitted by Mr. Pallone................... 87
Letter of May 15, 2015, from Senators to the FDA, submitted by
Mr. Green...................................................... 89
Statement of the National Restaurant Association, submitted by
Mrs. McMorris Rodgers.......................................... 94
EXAMINING H.R. 2017, THE COMMON SENSE NUTRITION DISCLOSURE ACT OF 2015
----------
THURSDAY, JUNE 4, 2015
House of Representatives,
Subcommittee on Health,
Committee on Energy and Commerce,
Washington, DC.
The subcommittee met, pursuant to call, at 10:02 a.m., in
room 2123, Rayburn House Office Building, Hon. Joseph R. Pitts
(chairman of the subcommittee) presiding.
Present: Representatives Pitts, Guthrie, Shimkus, Murphy,
Burgess, Blackburn, McMorris Rodgers, Lance, Griffith,
Bilirakis, Ellmers, Bucshon, Brooks, Collins, Upton (ex
officio), Green, Schakowsky, Butterfield, Sarbanes, Matsui,
Schrader, Kennedy, Cardenas, and Pallone (ex officio).
Staff Present: Clay Alspach, Chief Counsel, Health; Gary
Andres, Staff Director; David Bell, Staff Assistant; Sean
Bonyan, Communications Director; Leighton Brown, Press
Assistant; Noelle Clemente, Press Secretary, Andy Duberstein,
Deputy Press Assistant; Robert Horne, Professional Staff
Member, Health; Carly McWilliams, Professional Staff Member,
Health; Graham Pittman, Legislative Clerk; Chris Sarley, Policy
Coordinator, Environment & Economy; Heidi Stirrup, Health
Policy Coordinator; John Stone, Counsel Health; Jeff Carroll,
Minority Staff Director; Eric Flamm, Minority FDA Detailee;
Tiffany Guarascio, Minority Deputy Staff Director and Chief
Health Advisor; Samantha Satchell, Minority Policy Analyst; and
Kimberlee Trzeciak, Minority Health Policy Advisor.
OPENING STATEMENT OF HON. JOSEPH R. PITTS, A REPRESENTATIVE IN
CONGRESS FROM THE COMMONWEALTH OF PENNSYLVANIA
Mr. Pitts. The subcommittee will come to order.
The chair will recognize himself for an opening statement.
Today's health subcommittee hearing will be examining the
costly and burdensome regulations regarding the menu labeling
requirements as proposed by the administration and scheduled to
be implemented by December 1, 2015. The subject of our hearing,
H.R. 2017, the Common Sense Nutrition Disclosure Act, is
sponsored by our subcommittee colleague and Republican
conference chair, Cathy McMorris Rodgers, and Representative
Loretta Sanchez. The legislation will help small business
owners, franchisees, as well as consumers who want easy access
to accurate nutrition information. Covered establishments,
including pizza delivery businesses and grocery stores will be
subject to a cumbersome, rigid, and costly regulatory
compliance process to avoid violations and possible criminal
prosecution.
H.R. 2017 seeks to improve and clarify the final rule
promulgated by the Food and Drug Administration implementing
the menu labeling requirements of Section 4205 of the
Affordable Care Act. The FDA issued a nearly 400-page final
rule establishing a one-size-fits-all national nutrition
disclosure requirement for restaurants and similar retail food
establishments.
The concern is that this final rule goes well beyond what
was intended by the ACA. The obligations are imposed not only
on chain restaurants, including delivery establishments, but
also on any other chain retailer that sells non-packaged food
such as grocery store salad bars, and convenience stores' meals
to go. Small businesses that are not chain restaurants but are
indeed subject to the rule will face a dramatic increase in
regulatory compliance cost.
Consumers most assuredly will see higher food costs,
perhaps fewer choices. Some retailers may find it more
advantageous to stop selling restaurant-type food altogether.
So instead of purchasing fresh sandwiches, consumers may have
to buy pre-packaged sandwiches, since those will not require
the retailer to comply with labeling requirements.
Fixing this burdensome regulation could benefit tens of
thousands of restaurants, grocery stores, convenience stores,
small business owners, that otherwise would be burdened with
regulations that will be costly and hurt job creation.
According to the Office of Management and Budget, FDA's menu
labeling proposal would be the third most burdensome regulation
proposed in 2010; 14,536,183 hours to comply.
The objective of this legislation is to provide clarity,
flexibility, and certainty for these companies, while also
ensuring consumers have access to the information they need to
make informed nutritional decisions.
So I look forward to the testimony today. I yield the
balance of my time to Representative Morgan Griffith who would
like to introduce some of our witnesses.
[The prepared statement of Mr. Pitts follows:]
Prepared statement of Hon. Joseph R. Pitts
The Subcommittee will come to order.
The Chairman will recognize himself for an opening
statement.
Today's Health Subcommittee hearing will be examining the
costly and burdensome regulations regarding menu-labeling
requirements as proposed by the Administration, and scheduled
to be implemented by December 1, 2015. The subject of our
hearing--H.R. 2017, the Common Sense Nutrition Disclosure Act,
is sponsored by our Subcommittee colleague and Republican
Conference Chairman, Cathy McMorris-Rodgers (R-WA) and Rep.
Loretta Sanchez (D-CA).
The legislation will help small business owners,
franchisees, as well as consumers who want easy access to
accurate nutrition information. Covered establishments,
including pizza delivery businesses and grocery stores, will be
subject to a cumbersome, rigid and costly regulatory compliance
process to avoid violations and possible criminal prosecution.
H.R. 2017 seeks to improve and clarify the final rule
promulgated by the Food and Drug Administration (FDA)
implementing the menu-labeling requirements of Section 4205 of
the Affordable Care Act (ACA). The FDA issued a nearly 400-page
final rule establishing a one-size-fits-all national,
nutrition-disclosure requirement for restaurants and ``similar
retail food establishments.'' The concern is that this final
rule goes well beyond what was intended by the ACA.
The obligations are imposed not only on chain restaurants--
including delivery establishments, but also on any other chain
retailer that sells non-packaged food, such as grocery store
salad bars, and convenience stores' meals to go.
Small businesses that are not chain restaurants but are
indeed subject to the rule will face a dramatic increase in
regulatory compliance costs. Consumers most assuredly will see
higher food costs, and perhaps fewer choices. Some retailers
may find it more advantageous to stop selling restaurant-type
food altogether. So instead of purchasing fresh sandwiches,
consumers may have to buy pre-packaged sandwiches since those
will not require the retailer to comply with labeling
requirements.
Fixing this burdensome regulation could benefit tens of
thousands of restaurants, grocery stores, convenience stores
and small business owners that otherwise would be burdened with
regulations that will be costly and hurt job creation.
According to the Office of Management and Budget, FDA's
menu labeling proposal would be the third most burdensome
regulation proposed in 2010--14,536,183 hours to comply.
The objective of this legislation is to provide clarity,
flexibility, certainty for these companies, while also ensuring
consumers have access to the information they need to make
informed nutritional decisions.
I look forward to the testimony today and yield the balance
of my time to Rep. Morgan Griffith.
Mr. Griffith. Thank you, Mr. Chairman. I appreciate that
opportunity.
I am very pleased to introduce Delegate Israel O'Quinn.
Israel has been a member of the Virginia House of Delegates
formerly know as the House of Burgesses many, many decades ago,
and he has been there since 2011. He in his legislative
capacity serves on the Committee of Commerce and Labor, which
is much akin to Energy and Commerce, Privileges and Elections,
as well as Militia, Police, and Public Safety. He is a member
of the legislative Coal and Energy Commission, and serves on
the board of directors for the Virginia Public Safety
Foundation.
He is here today, as a citizen legislator should be, not in
his role as a member of the Virginia House of Delegates, but in
his role as an employee of K-VA-T food stores. That is known as
the Food City supermarket chain, and as you might gather from
the K-VA-T name, they do business in Kentucky, Virginia, and
Tennessee.
And he is here to talk about, of course, menu labeling as
it impacts the grocery business. But probably most importantly
that I shouldn't leave out is that Israel also attended a fine
institution of higher learning when he went to college at Emory
& Henry College, which is also my alma mater. So it is very,
very great that you allowed me to introduce my old friend
Israel O'Quinn to the members of the committee.
Thank you, and I yield back.
Mr. Pitts. The chair thanks the gentleman and now yields
Mr. Green 5 minutes for an opening statement.
OPENING STATEMENT OF HON. GENE GREEN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Mr. Green. Thank you, Mr. Chairman, and thank our witnesses
for being here today.
Today we are examining legislation that will roll back a
policy designed to give people access to calorie information
when ordering and consuming prepared foods. Congress embraced
this principle when it mandated that the nutrition information
be included on packaged food more than 20 years ago. Providing
the public with calorie information allows people to make
informed choices about the food they eat.
The Affordable Care Act was enacted in 2010 to improve the
health of American people and strengthen our healthcare system.
The main substance of the landmark law centered on expanding
access of affordable insurance and put to end some of the worst
abuses of the insurance industry. It also contained many
provisions to promote prevention measures and general wellness.
We know that consumers make better health decisions when they
are empowered with information.
Following this principle, Section 4205 of the Affordable
Care Act requires chain restaurants and food establishments
that sell prepared food to include calorie information on menus
and menu boards. Menu labeling has become increasingly
important in recent decades as people eat out much more often
than before, and the obesity epidemic has reached a crisis
level. It is a simple reform to ensure that consumers have
access to the same information regardless of whether eating at
home or outside their home.
As we will hear from witnesses today on how away-from-home
foods have negatively impacted the diet and health of the
American people. Without easily accessible and standard calorie
information, it is difficult to make informed choices at the
point of purchase.
The legislation we are considering today may weaken this
important tool. When enacted, the provision built off of the
thrust of the more than dozen State and local policies. H.R.
2017 could undermine the compromise negotiated between a wide
diversity of interests and stakeholders. As written, it would
have significant financial and public health burdens on
consumers, industry, and ultimately on taxpayer-funded budgets.
Giving supermarkets and convenience stores and other food
preparing establishments a blanket exemption to a uniform
standard is unwarranted. It is unsupported by the wealth of
research on the cost of compliance and real world evidence from
chains and restaurants that have embraced the commonsense
measures. It would create an uneven playing field for
competition among the businesses.
I appreciate the concerns raised by stakeholders
represented here today with menu labeling requirements. While I
do not support the legislation being considered by the
subcommittee, I am sympathetic to the concerns and the timing
and implementation and enforcement.
Due to lack of guidance or understanding questions on the
Agency's rule, I ask the FDA to provide at least a year
additional time for food establishments to comply. The law does
not include a statutory deadline. The FDA should extend the
implementation period to give industry the time to review such
guidance and address outstanding issues and comply with this
important requirement.
Again, Mr. Chairman, thank you for calling the hearing, and
when considering the legislation, we must always keep the
priority of transforming our broken healthcare system into a
true healthcare system in mind. And, again, I thank you and I
yield back the balance of my time.
Mr. Pitts. The chair thanks the gentleman.
I now recognize the chair of the full committee, Mr. Upton,
5 minutes for an opening statement.
OPENING STATEMENT OF HON. FRED UPTON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MICHIGAN
Mr. Upton. Well, thank you, Mr. Chairman.
Today we are going to discuss important bipartisan
legislation that indeed seeks to provide some balance to the
recently proposed menu labeling guidelines, H.R. 2017, the
Common Sense Nutrition Disclosure Act of 2015. The bipartisan
effort has always been spearheaded by Cathy McMorris Rodgers, a
good friend, member of our leadership, active member of our
committee.
This bill seeks to bring much needed clarity and alleviate
some of the burdensome and unnecessary requirements that the
menu labeling final rule has placed on businesses across the
country.
Take, for example, my Michigan-based company Domino's,
which we all know. Domino's has 34 million different potential
menu combinations. It has an online calculator that determines
the nutrition information for your particular order, and 91
percent of their orders are placed online, 91 percent.
Requiring in-store information for 34 million potential menu
items would cost each store an average of nearly $5,000 per
year, and it wouldn't address the ultimate goal of informing
consumers.
There is no doubt that the U.S. should have a uniform
national policy for menu labeling. However, we need to take a
pragmatic approach. The goal is ensuring customers have the
information that they need to make informed decisions, and in
order to do that we have to make sure that companies can
reasonably comply with those requirements. The current
situation fails to address the realistic needs of consumers and
places enormous burden on businesses all across the country.
As it stands, restaurants and similar retail food
establishments have until December 1 of this year to comply
with the final rule, yet there are still a number of
outstanding questions and issues. Complying with the final rule
will take substantial time and resources, and FDA has made it
even harder by failing to provide more clarity. Businesses need
to know how to comply. In order to do so, businesses need time
to plan and put things in place, and FDA's failure to provide
clarity has made it impossible for those things to happen.
So today we are going to hear from the stakeholders. I hope
that we can discuss solutions to the problems. I want to thank
the panel, and I want to yield the balance of my time to the
sponsor of the bill, Cathy McMorris Rodgers.
[The prepared statement of Mr. Upton follows:]
Prepared statement of Hon. Fred Upton
Today we will discuss important, bipartisan legislation
that seeks to provide some balance to the recently proposed
menu labeling guidelines--H.R. 2017, the Common Sense Nutrition
Disclosure Act of 2015.
This bipartisan effort is being spearheaded by Rep. Cathy
McMorris Rodgers, and I commend the GOP Conference Chair for
her ongoing work on this important issue. This bill seeks to
bring much needed clarity and alleviate some of the burdensome
and unnecessary requirements that the menu labeling final rule
has placed on businesses across the country.
Take, for example, Dominos, a Michigan-based company.
Dominos has 34 million different potential menu combinations.
It has an online calculator that determines the nutrition
information for your particular order and 91 percent of their
orders are placed online. Requiring in-store information for 34
million potential menu items would cost each store an average
of $4,700 per year--and it wouldn't address the ultimate goal
of informing consumers.
There is no doubt that the U.S. should have a uniform
national policy for menu labeling. However, we need to take a
pragmatic approach. The goal is ensuring consumers have the
information they need to make informed decisions. In order to
do that, we need to also be sure that companies can reasonably
comply with these requirements.
The current situation fails to address the realistic needs
of consumers and places enormous burden on businesses all
across the country. As it stands, restaurants and similar
retail food establishments have until December 1 of this year
to comply with the final rule, yet there are still a number of
outstanding questions and issues. Complying with the final rule
will take substantial time and resources, and FDA has made it
even harder by failing to provide more clarity. Businesses need
to know how to comply in order to do so; businesses need time
to plan and put things in place. FDA's failure to provide
clarity has made it impossible for these things to happen.
Today we will hear from stakeholders about the final rule
and the challenges they face as they work toward compliance. I
also hope we can discuss solutions to these problems. I would
like to thank the panel for being here today to discuss this
important topic. It is time we had a little more common sense
in the discussion on menu labeling.
I yield the remainder of my time to the author of this
legislation and my good friend, Congresswoman McMorris Rodgers.
Mrs. McMorris Rodgers. Thank you. I would like to thank
Chairman Pitts and Chairman Upton for their attention to this
important issue, and Representative Loretta Sanchez for co-
leading this bill.
Our joint efforts to clarify these regulations and
represent the needs of America's small business owners are
critical. I would also like to thank Chairman Upton and the
nearly 40 other bipartisan Members who have thus far agreed to
cosponsor.
H.R. 2017 is simple. Clarify the intent of this nearly 400-
page regulation so that businesses can comply with it and so
that consumers can have access to helpful calorie information.
That is why my staff and I have met with stakeholders and other
Member offices on all sides of this issue more than 20 times
this year and have asked how we can improve this legislation.
Something that we have heard again and again was that the 50
percent revenue trigger for what defines a restaurant is not
fair. And I would like to ask unanimous consent to insert into
the record a letter from the National Restaurant Association to
Congress on April 28 that only discusses the 50 percent revenue
exemption in H.R. 2017 as concerning.
Mr. Pitts. Without objection, so ordered.
[The discussion draft follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mrs. McMorris Rodgers. I would like to say that these
concerns have been heard. And I intend to fully address them as
we move to committee markup. I hope that today we can move on
and discuss the merits of this important legislation beyond
this one point. Like many other regulations, good intentions
don't always add up to practical policy.
This regulation tries a cookie cutter approach to treat
grocers and pizzerias like Capital Grill and Outback
Steakhouse. I don't think that this is workable or affordable.
Estimates state that this regulation could cost American
businesses more than $1 billion to comply and 500,000 hours of
paperwork. One of the most expensive regulations ever.
Requiring Domino's franchisees to post in their stores
every potential topping combination. As the chairman already
said, more than 34 million possible outcomes. When more than 90
percent of their orders take place over the phone or Internet
just doesn't make sense. This is commonsense legislation which
provides access to calorie information in a practical and
flexible manner by clarifying, not significantly altering, this
complicated regulation. We have been requesting comments from
stakeholders since January, and we have heard several on the
revenue trigger, which we have agreed to address, and hope that
we can move on now to the next step in the regular order of
process.
This bill is ready to move, Mr. Chairman, and I thank the
chairman and yield back.
Mr. Pitts. Chair thanks the gentlelady.
Now recognize the ranking member of the full committee, Mr.
Pallone, 5 minutes for opening statement.
Mr. Pallone. Thank you, Mr. Chairman.
Mr. Chairman, I would ask unanimous consent to put in the
record a letter from Congresswoman DeLauro addressed to you and
Mr. Green.
Mr. Pitts. Without objection, so ordered.
[The information appears at the conclusion of the hearing.]
OPENING STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF NEW JERSEY
Mr. Pallone. Thank you.
Increasing access to nutrition information can play an
important role in fighting our Nation's battle against obesity
and diet-related disease. Obesity in this country is far too
common, affecting nearly 78 million adults and 13 million
children. It is also a serious and costly public health
problem, with obesity-related conditions such as heart disease,
stroke, Type 2 diabetes, and others being some of the leading
causes of preventable death.
While there are many factors that may contribute to
obesity, we know that overconsumption of calories is one of the
primary causes, and that is why I have supported efforts to
provide access to nutrition information to consumers.
Thanks to the Nutrition Labeling and Education Act, of
which I was a cosponsor, this info has long been available on
packaged food items that you find on the shelves of your
grocery store. But it has not always been available to American
families when eating out away from home. This is a critical gap
when you consider that American families are eating out twice
as often as they have in the past and spend nearly half of
their food dollars on food made outside of their home.
Congress sought to address this gap when it passed Federal
menu labeling requirements in 2010 as part of the Affordable
Care Act. Under the law, restaurants and retail food
establishments with 20 or more locations doing business under
the same name and offering the same menu items are required to
put calorie information on their menus and offer more detailed
nutritional information upon request. The availability of this
information will help consumers make informed choices about the
food they are purchasing for themselves or for their families.
This was not a new idea. Prior to the passage of Federal
menu labeling requirements, more than 20 States and localities
had passed some type of menu labeling requirements, including
California, New York City, and even here in the D.C. area in
Montgomery County, Maryland.
These efforts and widespread support from consumers for
access to this information led the restaurant industry to work
closely with Congress to draft a strong Federal menu labeling
policy that would provide for consistent requirements for
restaurants and retail food establishments and clear
information to consumers. After much discussion and much
debate, FDA issued final regulations implementing the menu
labeling requirements in December last year. And I know this
was a challenging issue for the Agency, and I want to thank FDA
for following the intent of the law while also taking into
consideration the concerns raised in the more than 1,000
comments received.
We will hear from our witnesses today that there are areas
of the final rule where additional guidance may be warranted,
such as what constitutes a menu, how to address the concerns of
covered entities that offer prepared food items in various
parts of their store, among others.
I am sympathetic to these concerns and agree that further
clarification is needed, particularly for establishments
without prior menu labeling experience, such as grocery stores
or convenience stores. However, I do not believe legislative
action is necessary. The FDA has worked to minimize the cost
and burden for covered establishments and worked closely with
industry to address their areas of concern. I have no reason to
believe nor any evidence that the Agency will not continue to
work with these stakeholders to address their concerns.
Further, we know that FDA is currently working on a
guidance document to clarify some of the outstanding issues
that we will hear about today.
It is for these reasons that I do not support H.R. 2017 and
instead would support providing covered establishments
additional time to comply with the final menu labeling rule.
I thank our witnesses for their work on this issue and look
forward to hearing more about the legislation.
Iwould yield the rest of my time to Ms. Matsui.
Ms. Matsui. I thank the ranking member for yielding me
time. I thank the witness for being here today.
We all agree that the rising rates of obesity and the
resulting chronic health conditions constitute a health crisis
in our country. And we all agree that access to nutrition
information is an important step in addressing the obesity
epidemic.
The Affordable Care Act took great strides toward
addressing this epidemic by requiring nutrition labeling at
restaurants and other places where people purchase food.
The FDA has been working to implement this requirement in a
reasonable way, and to provide guidance to stakeholders who
have legitimate concerns about their ability to comply.
However, to the extent that additional guidance is not supplied
well in advance of the December 1 deadline, additional time is
warranted.
I look forward to working with the FDA and stakeholders to
ensure that this provision is successfully implemented to
benefit consumers without imposing overly burdensome or
impractical requirements on our businesses.
I look forward to hearing from our witnesses today and
working with my colleagues to address this issue going forward,
and I yield back the balance of my time.
Mr. Pitts. Chair thanks the gentlelady.
That concludes the opening statements. As usual, any
members' written opening statements will be made a part of the
record.
I have one request. I would like to submit the following
document for the record, a statement from the Food Marketing
Institute.
Mr. Green. No objection.
Mr. Pitts. Without objection, so ordered.
[The information appears at the conclusion of the hearing.]
Mr. Pitts. We have one panel before us today, and I will
introduce them in the order of their presentation.
First, Ms. Sonja Yates Hubbard, Chief Executive Officer of
E-Z Mart Stores, Inc., on behalf of the National Association of
Convenience Stores; secondly, Mr. Israel O'Quinn that
Congressman Griffith introduced, Director of Strategic
Initiatives, Food City, on behalf of the Food Marketing
Institute and National Grocers Association; third, Ms. Lynn
Liddle, Executive Vice President, Communications, Legislative
Affairs, Investor Relations of Domino's on behalf of American
Pizza Community; next Ms. Karen Raskopf, Chief Communications
Officer for Dunkin' Brands, Inc.; and, finally, Ms. Margo
Wootan, Director of Nutrition Policy Center for Science in the
Public Interest.
Thank you each for coming today. You will each be given 5
minutes to summarize your written testimony. Your written
testimony will be entered into the record. There is a series of
lights on your desk, and when it hits red, we ask that youwould
please conclude.
I will have to run tight gavel today. I will monitor my
little TV. On the floor we are scheduled to vote between 11:00
and 11:30. So we will go as long as we can. Hope to get through
the members' questions.
So at this point, Ms. Hubbard, you are recognized for 5
minutes for your summary.
STATEMENTS OF SONJA YATES HUBBARD, CHIEF EXECUTIVE OFFICER, E-Z
MART STORES, INC., ON BEHALF OF THE NATIONAL ASSOCIATION OF
CONVENIENCE STORES; ISRAEL O'QUINN, DIRECTOR OF STRATEGIC
INITIATIVES, FOOD CITY, ON BEHALF OF THE FOOD MARKETING
INSTITUTE; LYNN LIDDLE, EXECUTIVE VICE PRESIDENT,
COMMUNICATIONS, LEGISLATIVE AFFAIRS AND INVESTOR RELATIONS, ON
BEHALF OF AMERICAN PIZZA COMMUNITY; KAREN RASKOPF, CHIEF
COMMUNICATIONS OFFICER, DUNKIN BRAND, INC.; AND MARGO G.
WOOTAN, D.SC., DIRECTOR, NUTRITION POLICY, CENTER FOR SCIENCE
IN THE PUBLIC INTEREST
STATEMENT OF SONJA YATES HUBBARD
Ms. Hubbard. Chairman Pitts, Ranking Member Green, members
of the subcommittee, thank you for the opportunity to testify
before you today. My name is Sonya Hubbard, and I am the CEO of
E-Z Mart Stores headquartered in Texarkana, Texas. E-Z Mart
owns and operates nearly 300 convenience stores in Texas,
Oklahoma, Arkansas and Louisiana, all of which offer foods that
are subject to the FDA's current menu labeling regulations.
I am testifying today on behalf of NACS, the National
Association of Convenience Stores. Although more than 60
percent of our members operate single stores, many of these
single-store owners do business under the name of a major oil
company or are franchisees of larger businesses that are thus
covered by the menu labeling requirements that are subject of
the hearing today.
The convenience store industry strongly supports H.R. 2017,
the Common Sense Nutrition Disclosure Act, and the efforts to
provide customers and consumers with nutrition information that
they want and need. Indeed, most of the food sold in the
convenience stores is prepackaged, as has been discussed, and
already provides this information.
If Congress enacts H.R. 2017, consumers would receive more
nutrition information than they do today, and they would
receive it in a way that is more useful to them. The food
operations of the convenience stores are vert different than
that of chain restaurants, yet the FDA's final ruling was
geared toward the chain restaurant model. Many chain
restaurants sell the same food offerings prepared in the same
way and displayed on the same menu at all of their locations.
That is not true for the convenience store industry.
Convenience stores, even those that are part of the same chain,
sell different foods based upon the different locations and the
different market demands. Even stores that do sell the same
items may offer those items in different ways in stores that
are configured differently.
At E-Z Mart, we have different foods in different
locations, which would in turn require different menus. Even
when different stores have the same foods like a breakfast
sandwich, they might have a different calorie count because the
supplier that provides the components are different. E-Z Mart
deals with more than 50 food suppliers, and it has proved
difficult getting the nutrition information we need from them.
We expect that some won't get us that information by the
December 1 deadline. And there isn't much we can do about it.
Nothing in the law or regulations requires suppliers to give us
the information that we need. The responsibility is ours alone.
The food we offer changes frequently. At any given time we
may be testing 15 or 20 different new products, and some of
them will become long-term permanent fixtures in our stores,
and others may change and be only temporary. This only adds to
the complexity and difficulties of complying with the rules.
We want to provide our customers with useful information,
and H.R. 2017 does not roll back the regulations, but instead
gives us the flexibility we need to do this.
For example, the legislation would allow us to have one
menu board in our locations rather than a scattering of
confusing signs throughout the stores that repeat the same
information. A basic wall of words. It would allow us more
flexibility to display calories in ranges and averages rather
than trying to come up with exact calorie counts for all items
that may vary. The bill would give us more flexibility for
foods that we are testing in different locations.
In addition, the bill would be very helpful in curbing the
high punitive nature of some of the enforcement provisions. It
simply should be not be a felony if a store does not prepare
the food exactly the same way as another store on the exact
same day if one of my clerks makes a mistake. We need some
recognition of the good faith efforts to comply. And no mistake
in this area should be serious enough to charge one of my store
managers with a felony.
Finally, we need more time to comply once new regulations
are issued. This is a complex regulatory regime, and we must
analyze each and every one of our locations differently. We
need time to work with our suppliers.
The bottom line is that H.R. 2017 is good sensible
legislation that will improve the FDA's rules by helping
businesses actually comply, and that will mean more good useful
information to consumers.
I thank you again for the opportunity to testify, and I
look forward to answering any questions you may have.
Mr. Pitts. Chair thanks the gentlelady.
[The prepared statement of Ms. Hubbard follows:]
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Mr. Pitts. Now recognizes Mr. O'Quinn 5 minutes for opening
statement.
STATEMENT OF ISRAEL O'QUINN
Mr. O'Quinn. Good morning, Chairman Pitts, Ranking Member
Green, and health subcommittee members. I am Israel O'Quinn,
Director of Strategic Initiatives for K-VA-T food stores based
in Abingdon, Virginia. Our company operates 105 supermarkets
primarily under the Food City banner in Kentucky, Virginia, and
Tennessee. We are also an associate-owned ESOP company, and
that is certainly something that we all take a lot of pride in.
Additionally, we are members of the Food Marketing Institute
and the National Grocers Association. So I am here representing
a lot of grocers all over the United States today.
We really appreciate the work that you are doing to
consider the impact of the FDA's menu labeling regulations on
grocery stores and the need for the Common Sense Nutrition
Disclosure Act of 2015, also known as H.R. 2017.
As grocers, we like to provide our customers with the
products they want in the format that they desire, and more
than 90 percent of the foods in our grocery store have not only
calorie information but the full nutrition facts panel listing
fat, sodium, and sugar content among other things. Many of the
remaining items that we offer are actually sourced from within
the store. If a cantaloupe or some other fruit or vegetable
gets ripe in the produce department, we bring it over to the
bakery/deli department, cut it up, and put it in the salad bar.
And, in fact, many of our bakery/deli departments actually
prepare foods that may be specific to a single store or a
handful of stores based on regional tastes and preferences.
Throughout our stores and across our company, we have a
team of quality assurance personnel that is focused exclusively
on food safety. That includes implementation of the Food Safety
Modernization Act, compliance with country of origin labeling,
ingredient labeling, allergen labeling, bioterrorism and
recordkeeping and proposed updates to the nutrition facts
panel, as well as recall notifications.
We also have our own safety and quality standards that go
well beyond these laws because I can promise you the last thing
we want is someone to get sick from the food in our grocery
stores.
You might ask how any of this is related to what we are
talking about today. These are all areas that are of priority
of the supermarket industry specifically and where we devote a
lot of time and resources. They are also regulations that are
not applied to chain restaurants. So when the FDA takes a chain
restaurant menu labeling law and stretches its regulations out
to grocery stores on top of all the other food safety and
nutrition laws that we comply with and abide by, it shouldn't
surprise anyone that the glove simply doesn't fit.
Now, we are wholly committed to aiding our customers in
making healthy choices, and I will highlight quickly just three
of those things that we are currently doing.
We, along with a lot of other grocers, have a healthy
initiatives department that helps our associates and our
customers make more informed decisions about healthy eating.
Something we didn't have to do but something that is the right
thing to do.
We have also invested significant resources in the NuVal
scoring system, a system that gives a 0 to 100 score right on
the shelf tag so you can easily tell the nutritional value of
any given product.
We are also involved in a large locally grown produce
initiative. Now, most of the farmers in this initiative were
formerly tobacco farmers, and they are now growing the freshest
and best tasting fruits and vegetables that you can find
anywhere.
Over a 14-year span in this program, we have gone from
purchasing $750,000 in product to nearly $6 million last year
alone. We are now able to offer premium produce at a very
affordable price, and you can know the specific farm from which
that product came. We were doing locally grown a long time
before it was actually cool.
In closing, you may or may not be aware that grocery stores
operate on a profit margin that averages about 1 percent. There
is very, very little room for us to absorb costs such as the
ones presented by menu labeling.
When you operate on a razor thin profit imagine, you simply
don't have the luxury of spending money on things that bring
little to no value. The costs are ultimately passed along to
the consumer, and in an economy that contracted at .7 percent
last quarter, consumers can't afford to be paying more and
getting very little in return for those investments.
Now, our industry has asked a lot of questions and
attempted a lot of meetings with FDA throughout this process,
and we have had very few meetings and very few answers. So we
believe that H.R. 2017 is a huge step in the right direction.
We thank Ms. McMorris Rodgers and Ms. Sanchez for putting this
bill in, and we thank you very much for your time and
attention.
Mr. Pitts. Chair thanks the gentleman.
[The prepared statement of Mr. O'Quinn follows:]
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Mr. Pitts. Now recognizes Ms. Liddle 5 minutes for opening
statement.
STATEMENT OF LYNN LIDDLE
Ms. Liddle. Good morning, ladies and gentlemen. I am
honored to have the privilege to speak on behalf of the 20,000
pizzerias across the U.S. who make up our coalition called the
American Pizza Community, and for 900 Domino's small business
owners. I appreciate your giving us this chance to discuss how
calorie information is best presented to our customers.
Our requests are simple modern practical solutions that
will inform consumers in a better way and relieve a cost burden
from small business. I believe that you will find them more
than reasonable.
At Domino's, as we have heard, there are 34 million ways to
make a single pizza based on all the crust types, sauces, and
toppings that we offer. Pizza Hut has published that they now
have 2 billion.
So our first point is that you can't possibly fit all the
iterations of a pizza on a typical menu board like you can for
burgers, for example. FDA did understand that too. So they said
just put ranges. But if you put ranges for a whole pie, that is
a range of up to 2,000 calories. If you do it by the slice, it
is still a range of hundreds of calories. We think that the
calories should be disclosed more precisely so that our
customers actually know what they are eating. Our solution is
to put the information where our customers go. Online. Right
now about half of all Domino's orders and those of Pizza Hut
and Papa John's come from online. And 5 minutes from now there
will be more since the industry is moving there at warp speed.
The rest of our customers who don't order online pick up the
phone to order. This means that very few people, and our
figures show less than 10 percent, walk into a store, look at a
menu board and make their ordering decision in that way. Think
about your own ordering habits. What do you do when you order
pizza?
To illustrate this point with a specific example, we
recently spent an average day in a Domino's store in Michigan.
Out of the 324 orders we witnessed, 91 percent were placed
remotely, either online or by phone. About 7 percent were
placed in store, and not even 2 percent of customers, that is 5
out of 324, used the menu board to place an order. To us, it
makes no sense to retrofit this information on a menu board
which the vast majority don't even use.
My second point is about imposing an unneeded and somewhat
bizarre expense, we think, on small business people. Most
people think of Domino's or Papa John's, for example, as big
business, but we are actually a collection of small business
owners or franchisees. Nearly half of Domino's franchisees only
own one store, and our average is just 5 stores per franchisee.
This is the common model for pizza. So why make these small
local business people who live, work, and hire in your
districts pay thousands of dollars a year for something that
nobody uses.
There are also other provisions of the final rules from FDA
that we find pretty frightening. They define menus very
broadly, which will force businesses to calorie label anything
a customer could possibly order from. The original law defined
a menu as the primary writing of the restaurant.
Now, I am a simple Midwesterner, but I think primary means
first and foremost, not all. In our business, we send lots of
advertising fliers out, top boxes with fliers, and put posters
up in stores. None of these were ever intended as menus, and
they can't possibly all be considered primary. And this isn't
unique to pizza. It spans across many restaurant types. FDA
claims to have recognized this point, but the definitions that
they laid out in the final rules still don't differentiate
these properly.
Lastly, the final FDA regulations require that you have to
certify at both the corporate and individual store levels that
you have listed all the correct calories in all the correct
places and that you could face criminal penalties should you do
this wrong. And what about class action lawsuits if a teenage
pizza maker is a little heavy handed with the cheese and the
slice doesn't match the listed calories.
We believe that a business should be required to show that
it has made reasonable efforts to correctly depict calorie
information, and I hope that we can all agree that
inadvertently putting too many toppings on a pizza should not
result in crippling fines and threats of jail time.
Even with all the fixes that we have proposed, the job of
calorie labeling won't be an easy one, but we think it is worth
it. People do have a right to know what they are eating, which
is why we have been voluntarily disclosing calorie information
in one form or another for 14 years.
But to get ready, computer programing, material design,
nutritional research, and operational systems will need to be
put in place. So we have asked for more time to get it done.
But let me be clear. In no way do we see a delay in the rules
as a solution. We must have a legislative fix.
In closing, I cannot say it too many times. We are not
seeking an exemption. We want to comply in a way that fits our
business model, provides the information to our customers in
the clearest way, and doesn't make small business pay for
materials customers won't see or use.
We ask you to support and ultimately vote for H.R. 2017 for
the sake of all these important constituencies. Chairman Pitts,
and members of the subcommittee, thank you for listening to me,
and thank you, Representatives McMorris Rodgers and Sanchez for
your leadership on this issue.
Mr. Pitts. Chair thanks the gentlelady.
[The prepared statement of Ms. Liddle follows:]
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Mr. Pitts. Now recognizes Ms. Raskopf 5 minutes for an
opening statement.
STATEMENT OF KAREN RASKOPF
Ms. Raskopf. Thank you for the opportunity to testify
before you today. My name is Karen Raskopf, and I serve as the
Chief Communications Officer for Dunkin' Brands. Dunkin' Brands
is the franchisor and parent company of two of America's most
beloved brands, Dunkin' Donuts and Baskin-Robbins. Both Dunkin'
Donuts and Baskin-Robbins are essentially 100 percent
franchised. At the end of 2014, Dunkin' Brands included more
than 10,500 Dunkin' Donuts and Baskin-Robbins in the United
States alone.
And, by the way, Baskin-Robbins franchisees own an average
of about one restaurant. Dunkin' Donuts own an average of about
six. So they are small business people.
Dunkin' Brands has proudly supported national uniform menu
labeling for many years, and we continue to believe a national
standard for providing nutrition information on all restaurant-
type foods is critical. Over the past several years, Dunkin'
Brands and many others in the restaurant industry have worked
proactively with Congress and the administration to help reform
what had previously been a complex highly localized approach to
menu labeling.
Before the Federal solution, labeling laws were being
passed on a state-by-state, city-by-city basis, and in some
cases counties were competing with cities to pass such laws.
Competing State and local menu labeling laws were difficult and
disruptive for businesses, as well as lacking in consistency
for customers. A national approach to labeling was an important
and necessary step for our franchisees, our industry, and, most
importantly, for consumers. It has been long overdue and
remains critically important.
We acknowledge that today's food service industry is large
and complex. However, though we continue to have some specific
questions in regards to how to efficiently and effectively
implement certain sections of the regulation, we appreciate
FDA's commitment to working with stakeholders. We believe FDA
generally followed the intent of the law, and did so in a
manner to largely minimize cost and burden to the food service
industry. While some may argue that there is expense and
inefficiency in regards to implementation, after having
complied with both individual State laws, as well as completing
much of the work to meet the year end deadline, I can assure
you FDA has worked to address most of the significant and
potential costly issues to us.
Likewise, the new labeling regulation is intended to
benefit both businesses and consumers by focusing on all
establishments that serve restaurant-type food, not just a
select few. For this reason, the regulation specifically
includes not only restaurant chains but also other food service
retailers with 20 or more locations, including convenience
stores, grocery stores, and others.
H.R. 2017 includes a provision that imposes a percentage
revenue threshold exempting grocery and convenience stores from
having to label their restaurant-type food. We strongly
disagree with this. The benefits of nutrition labeling are
important no matter the size of the menu or the percentage of
sales from food.
I hope Congress will maintain the labeling regulation as it
was written. Grocery and convenience stores are increasingly
competing against our restaurants. While we welcome the
competition, we believe that restaurant-type food that grocery
and convenience stores sell should be held to the same
standards as the food that traditional restaurants sell. This
is about the type of food being sold, not the business format.
A final point I would like to make is there have been many
concerns expressed in regards to the expense associated with
determining nutritional information and the cost to communicate
that information. To be clear, the regulation states that food
service operators need only use reasonable means to calculate
nutrition information. Lab testing is not required. There are
multiple ways to determine nutritional values, many of them at
minimal cost.
And, very importantly, the regulation does not require menu
boards. The regulation--how companies choose to communicate
nutrition information is a business decision, not a legislative
one, and from high tech to low tech, there are many
communications options available to retailers.
For these reasons, we do not support the language in H.R.
2017 that clarifies this point. And to be clear, we do not
believe any additional legislation is necessary. All clarifying
information can be handled through FDA guidance.
Thank you for the opportunity to testify.
Mr. Pitts. The chair thanks the gentlelady.
[The prepared statement of Ms. Raskopf follows:]
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Mr. Pitts. Now recognizes Dr. Wootan 5 minutes for an
opening statement.
STATEMENT OF MARGO G. WOOTAN, D.SC.
Ms. Wootan. Good morning. I am Margo Wootan, the Director
of Nutrition Policy at the Center for Science in the Public
Interest, and I appreciate the opportunity to share the
consumer view this morning.
CSPI supports the Senate's bipartisan request to the FDA to
give industry more time to comply with menu labeling, but we
strongly oppose H.R. 2017. The Common Sense Nutrition
Disclosure Act supports neither commonsense nor nutrition
information disclosure. Commonsense would be to side with the
American people who are afflicted by high rates of obesity over
Domino's, which is hardly in need of Congressional protection,
given its almost $2 billion in annual sales.
At a time when two-thirds of Americans are either
overweight or obese, half of our food dollars are spent on
away-from-home foods, and studies clearly link eating out to
obesity. Common sense would suggest that Congress support
Americans' ability to make educated choices from the widest
range of food service establishments provided under the law.
I admire the gutsiness of some of my fellow witnesses. It
is politically astute and clever to focus on the fixes that
H.R. 2017 would supposedly provide them while failing to
mention that the bill would totality exempt them from providing
calorie information for their prepared foods. This bill most
definitely would not make it easier for people to access
meaningful, easily accessible nutrition information. That is
why over 115 health experts and organizations oppose this bill.
Supermarkets say that they are willing to give customers
what they want, but fail to mention that over 80 percent of
Americans want supermarkets to provide calorie information for
their prepared foods like fried chicken, sandwiches and soups.
And more than a quarter want calorie labeling for the hot dogs,
pizza, nachos, and other foods sold at convenience stores. How
are people supposed to make informed choices if Congress,
supermarkets, convenience stores, pizza chains, and movie
theaters withhold nutrition information from them?
Supermarket and convenience store exaggerations about the
cost of menu labeling remind me of concerns in the early days
when I was first working on menu labeling. But those did not
turn out to be true. Menu labeling software is inexpensive.
Many supermarkets already have dieticians on staff who can
conduct calorie analysis. And restaurants have shown that
calorie labeling is affordable and feasible in the dozens of
jurisdictions where it is already in effect.
It is also disingenuous for supermarkets and convenience
stores to promote themselves to customers as alternatives to
restaurants while at the same time lobbying Congress about how
different they are. Supermarket bakeries, buffets, salad bars
are like those in restaurants, and many supermarkets now have
tables where people can eat. 7-Eleven, Wawa and Sheetz are
among the hundred top food service establishments in the
country. And some of them even belong to the National
Restaurant Association.
It is particularly hard to understand why pizza restaurants
need a special exemption from listing calories on in-store menu
boards. While many people do order pizza by phone or computer,
similarly, many do not enter fast food restaurants, and order
instead through the drive-thru. Yet fast food restaurants
aren't opposing having to provide their customers with
nutrition information on each of their menus. Likewise, pizza
restaurants should not deny nutrition information to their in-
store customers.
And pizza is a real problem in American's diets. It is the
fifth largest source of calories. It is the second biggest
source of saturated fat, and it is the third biggest source of
sodium. If any restaurants need comprehensive nutrition
labeling, it is pizza restaurants. The variability of pizza
with its different crusts and toppings is no different than the
variability of Subway sandwiches with different breads and
meats and toppings and spreads. Or ice cream sundaes or
Chipotle burritos. Calories can and are being expressed as
ranges, or being provided for commonly ordered standard builds.
Finally, H.R. 2017's provision to allow restaurants and
other food service establishments to arbitrarily chose to label
items for only a fraction of the menu item is a recipe for
confusion. It would be deceptive for consumers and make it very
difficult for them to order.
I urge the committee to oppose H.R. 2017. Your
constituents' health depend on it.
Mr. Pitts. Chair thanks the gentlelady.
[The prepared statement of Ms. Wootan follows:]
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Mr. Pitts. As Mr. Lance said, I overheard him, he said,
``You are making me hungry.''
Thank you for the testimony. We will now begin questioning,
and I will recognize myself 5 minutes for that purpose.
To all the panelists, let me start with this question: With
the implementation date of December 1, less than 6 months away,
there is still a lot of outstanding questions for the FDA.
Considering the short amount of time for compliance and the
lack of guidance from FDA, would you all agree that there
should at least be a delay for implementation? Just yes or no,
if we can go down the line.
Ms. Hubbard.
Ms. Hubbard. Yes, sir.
Mr. Pitts. Mr. O'Quinn.
Mr. O'Quinn. Yes.
Ms. Liddle. Yes.
Mr. Pitts. Ms. Liddell.
Ms. Raskopf.
Ms. Raskopf. We are willing to agree to a delay.
Ms. Wootan. Yes. We think that is reasonable.
Mr. Pitts. Thank you.
Go to Mrs. Hubbard, or Ms. Hubbard. What are the biggest
issues your businesses are facing? And what do you anticipate
the costs will be for implementing these regulations?
Ms. Hubbard. I think the biggest challenge we face is the
diversity in not just the industry but within my own chain, our
own stores. We are 45 years old. We have acquired a lot of
stores. They all have different age and different products in
the way they are laid out. If you will envision one store we
walk in and the food service is on this end that offers
fountain as a bundled piece with something you purchase. The
fountain dispensers are down on this end. Coffee bar is
somewhere else, as is the hot dog and the pastry case.
The way we interpret this, we have to have all the postings
of all the calorie count adjacent to those products and
repeated. It would be duplicative throughout the store. I mean,
it literally would be a wall of words for the consumer to try
to interpret to find what the calorie count is, and how we
display that.
And if somebody were to move that piece that displays the
calorie count, then is this now a felony? I mean, we are very
concerned about, I think, the punitive damages of this and the
practicality of trying to implement and have all these in
different stores. I mean, we truly would have 300 different
compliance plans.
Mr. Pitts. Mr. O'Quinn, could you answer that question.
What are your biggest issues you are facing with this?
Mr. O'Quinn. Well, I think certainly some of the biggest
issues come in how you actually label these products in the
grocery store. If you take a salad bar area, for instance, we
have looked at multiple ways to do that, whether it be putting
something on the spoon itself. But should perhaps my 10-year-
old cousin come through and move all the spoons around, you are
subject to FDA punitive penalties. If you put it up on--label
everything up on the sneeze guard, someone comes through,
cleans that, the alcohol-based cleaner makes one fall off. How
do you account for that?
And then, we have looked at electronic boards and how often
do things have to cycle through on them? How big do they have
to be? I think the physical labeling of it is certainly one of
the biggest challenges that we are going to face and how you
make that consistent and how you make it the same every single
day.
Mr. Pitts. Ms. Liddle, would you please respond to that
question. Biggest issues your businesses are facing and the
costs?
Ms. Liddle. I think the biggest head scratcher for us
really is why we would put unclear range information on a menu
board for those very few people who look at a menu board. We
think a better solution for the few people who walk into a
store would be to put a comprehensive booklet, perhaps, on the
countertop or maybe even an iPad. But to put ranges on a static
menu board that won't help consumers to make a good decision
seems to not make sense to us. So that is the one issue.
And then secondly, even though we are a big company with
revenues, as Ms. Wootan pointed out, we are a conglomeration of
small business people. Half of our guys only own one store. So
we are going to make them pay for something that people are not
looking at. That to us just is beyond a challenge. It really
makes no sense at all.
Mr. Pitts. Ms. Hubbard, you said you would support a delay.
If Congress or FDA unilaterally should act to delay compliance
for a year, does that solve the problem, or would we simply be
back here a year from now hearing testimony debating regs
again. Shouldn't we just put H.R. 2017 on a fast track to the
White House?
Ms. Hubbard. I absolutely do not think a delay solves our
problem. We still have the issues, just as I said, on how do we
communicate this to the consumer. If the intent is to provide
the consumers with useful information to make choices, don't we
need to do that in some concise way that they can actually find
it? I think we have all walked into maybe a quick-serve
restaurant and been overwhelmed by the menu board. Can you now
imagine that 50 times worse with the configurations of all the
sodas, and even within the advertising on the store. So a delay
does not solve this, no, sir.
Mr. Pitts. My time is expired. I will have to send my
questions to you in writing.
At this time I recognize ranking member, Mr. Green, 5
minutes for questions.
Mr. Green. Thank you, Mr. Chairman.
I want to remind the panel the Affordable Care Act was
passed in 2010. It has taken the FDA a while to do it. Here we
are 5 years later, and we still have a problem with obesity in
our country. And some of the suggestions in here--we are not
going to stop people from eating what they want to. I am going
to go to Domino's or Dunkin or get enchiladas in Texas at one
of our convenience stores.
But I think the bottom line, though, is we want people who
are concerned about their obesity, their children's obesity,
their parent's obesity, and that ultimately end in diabetes,
and that is why it was part of the Affordable Care Act.
So I would like to see what we could do to be workable,
but, again, you are right. I have been in a lot of convenience
stores, but we do have some folks who are complying with it but
we still need to make sure the consumers have that information.
And maybe we need to present it in a better way. I don't know
if a booklet on the counter because fast food stores are meant
to be fast food. Nobody is going to leaf through a booklet
while they are waiting for their hamburger.
But, Ms. Raskopf, I want to thank Dunkin' Donuts and the
restaurant industry for your leadership on the issue and your
work on the final law. Consistency in menu labeling
requirements is not only critical for the industry, but also
for consumers to ensure that the presentation of calorie
information is easily understood and regardless of where they
live or where they dine.
Much of the discussion on this issue has been focused on
types of restaurant. Retail restaurant, food restaurants should
be covered by these menu labeling requirements. However, it
seems to me that our focus should be more on types of food that
should be covered, and especially on consumer demand for ready-
to-eat and prepared food continues to grow.
In your testimony, you note the similarity between
supermarkets and restaurants. We have heard from supermarkets
that the cost of compliance would be up to $1 billion in
initial cost due to the number of items that would be
undergoing in nutrition.
I have not heard that concern from restaurants. Ms.
Raskopf, can you explain what the cost of compliance with FDA's
final menu labeling rule would be for the Dunkin' Brands
restaurant?
Ms. Raskopf. Yes, sir. And we have spent the last year
looking at this to ensure that we were able to comply with this
by the end of this year. We too have a very complex business. I
mean, if you look at all the different ways you can order
coffee, 15,000 different ways; sandwiches, 3,000 different
ways; and the cherry on the top, ice cream sundaes, 80,000
different ways. So we understand that this is a complex
business, but we have been able to figure out a way to do this
with our menus.
The cost of this for us is going to be Baskin-Robbins
shops. It is about $400 per restaurant. For Dunkin' Donuts,
about a third of our Dunkin' Donuts restaurants in the United
States have digital menu boards, and the cost for them will be
to label the drive-thrus, and that is about $600 to $700 a
restaurant. If they don't have a digital menu board, it is
about $1,200.
Again, I just want to say that it does not require menu
boards. So there is a multitude of inexpensive ways that people
can label for their nutritional value whatever type of business
format they have.
Mr. Green. OK. Dr. Wootan, there has been a lot of
discussion regarding your scope of the menu labeling
requirements and the definition of a restaurant and similar
retail food establishments. The intent of the law was not to
confine the scope solely to restaurants or other establishments
primarily engaged in the sale of food, but rather it applied
broadly to entities that sell food to consumers. This was the
decision based largely on an increasing trend of American
families spending their food dollars on items prepared outside
the home. That has been going on for a couple of decades now.
Not only my children but also I see my grandchildren.
Dr. Wootan, as someone that were involved in the drafting
of the original legislation, is it clear that the law was
intended to broadly cover restaurant-type food?
Ms. Wootan. Absolutely. When the law was written, it
include not only restaurants but also other food service
establishments, and that was meant to cover the broad range of
food service establishments that provide prepared foods.
In fact, I remember the supermarket industry trying to get
an amendment to strike that part of the law, make it clear that
they were excluded, and they were not successful in that
effort. So they knew they were going to be included. They
should have been preparing for this and getting ready as the
restaurant industry has been.
Mr. Green. OK.
Dr. Wootan, from a consumer perspective, can you discuss
what do you think the impact is from having certain food
establishments exempted?
Ms. Wootan. Not having nutrition information in
supermarkets and convenience stores will really limit people's
access to information. They are increasingly competing with
restaurants. And people are just stopping off at the grocery
store and buying, you know, fried chicken or meatloaf with side
dishes just as they do at restaurants.
And so more and more, people are turning to supermarkets
for prepared foods like they do for carry-out from restaurants.
And at pizza restaurants, while many people order over the
phone, those people that do walk into the restaurant want to
have nutrition information. We really need to look at this from
the consumer perspective. And it is from where the consumer is
ordering that matters and where they need the information.
The law does not require a pizza chain to put up a menu
board. If they don't think that enough people are going into
their restaurant that they feel they need to have a menu board,
they don't have to have one. But if they think enough people
are coming in, that they are putting up a menu board and
listing the pizzas and the prices, then next to that price they
also need to post the calories.
Mr. Green. Thank you, Mr. Chairman.
Mr. Pitts. The chair thanks the gentleman and now
recognizes the gentleman from Illinois, Mr. Shimkus, for 5
minutes of questions.
Mr. Shimkus. Thank you, Mr. Chairman. I was almost going to
sneak out from the hearing. And I understand there is some
people who want to see this information. And I think if you did
national polling, people would say sure, I would like to have
it on. I don't think I have ever in my life read a menu label.
I don't think I have ever looked for calorie numbers on
anything I have consumed. And I bet that, I bet you I am in the
majority of Americans.
So I just throw that out there. I really struggle with
this. This is the perfect example of a nanny state, of a
national government telling individual citizens and saying what
is best for them and directing and pushing private sector
individuals, to push people to consume things that they feel--
that, it is, and it is unfortunate but we are here.
And so we have some issues to address. And I was here when
we passed the healthcare law. All we passed was the Senate
version of a bill. The Obamacare that passed, the healthcare
law was a Senate bill that we passed on the floor without any
additional debate or oversight for a year and a half later.
So, I want to go to Ms. Hubbard. OK. Here is the example, I
have sons that I love very much. So they go and they get a
drink at one of the convenience stores. They have personally
titled a Scourade. Now, I am not sure what is in this thing. I
think it is Sprite, Coke, Powerade, you know, that they mix
themselves. You can't label for that, can you?
Ms. Hubbard. No sir. That is one of the complexities of the
bill and of that self-service. It also would entail we list the
calorie count for the items in cups without ice. I would also
bet your sons also put ice in their cups. So, therefore, even
what we provide them, based upon the rules, isn't going to be
inaccurate, if I were to get their combination right.
Mr. Shimkus. How many kind of items just in one of your
locations would have multiple concerns about getting the right
calorie count so you wouldn't--and if you didn't and if you
were held accountable by, I guess, Federal law enforcement, I
guess we are going to have Federal law enforcement, police,
coming into retail stores, checking the menu labeling and
ensuring adequate calories are posted in multiple combinations?
Ms. Hubbard. Virtually everything we serve would have some
sort of the ability to--all of the drinks, obviously, have a
wide variety of calorie-count combinations that can--some of
that is self-service by the consumer. But then on the prepared
items even, if I have a clerk that is feeling generous that day
and they put, or the cheese sticks together, they slap an extra
slice of cheese on there, they don't cut the pizza in exact
eighths, I mean, all of those things, and, I think, obviously,
you point out the obvious concern, this is a felony now. And
how do I protect----
Mr. Shimkus. A felony?
Ms. Hubbard. Yes, sir.
Mr. Shimkus. Mr. Quinn, also a delegate, I guess that is
what you call it in Virginia, part of this debate early during
the healthcare law was the same debate we have here in Energy
and Commerce, is that there was a concern that if we don't have
a national--this is now put in a national bill, then there
would be maybe local, community movements or county movements
or even States would then disrupt national chains.
So to the extent some of the national chains say save us
from ourselves or save us from the different parts of the
country who may do individual referendums and have multiple--
can you speak to that from both positions that you, as a
representative, not representing the State, but, just can you
address that?
Mr. O'Quinn. Yes, sir. I think that we certainly have seen
States and individual localities across the country adopting
menu labeling laws. And I think that certainly becomes
difficult for single-store operators or even a medium-sized
grocery chain, like we are, to be able to comply with this
patchwork of regulations. None of those have actually been in
our area, but they have been in plenty of our friends' areas.
And so now you are saying that, the FDA is going to come in
with this more overarching rule and be able to enforce it
across the entire country. But then what you set up is, so you
have got the Federal rule that would supercede the State laws.
But all they have to do is mimic the exact same regulation at
the local level. And then, all of a sudden, it doesn't
supercede, it is more or less exactly the same.
So you could have FDA in your store one day saying, you
know, this is not going to work, you are outside of your five
calorie variance and you are in big trouble. You could also
have someone from a town or a city or a county coming in and
saying the exact same thing if they have set up a law that does
not supercede the Federal law itself. And so you are going to
be right back in the same boat, only FDA will have promulgated
regulations. It is not like that there is going to be a
regulatory process by a local county government. You are just
going to be dealing with the on-the-fly interpretation by
someone else. So, to me, that is a really slippery slope to
start down.
Mr. Pitts. The chair thanks the gentleman and now
recognizes the ranking member of the full committee, Mr.
Pallone, for 5 minutes for questions.
Mr. Pallone. Thank you, Mr. Chairman. I am listening to Mr.
Shimkus describe mixing the sodas at the fountain and I have to
tell you, I hate that. I am a purist. Some of those machines
now, you press Coke and it gives you five different Cokes. And
I am always afraid I am going to get the Cherry Coke and mix it
with the regular because I don't like to do that.
But, anyway, I guess I am going to be asking questions
about pizza here. I want to start with Dr. Wootan. I am
interested in how H.R. 2017 treats serving sizes and how it
differs from FDA's final menu labeling rule. The FDA final rule
allows pizza slices to provide calorie counts for pizza or per
standard slice with a listing of the number of slices per
pizza. But H.R. 2017 seems to allow something very similar. It
would allow covered establishments to list the number or
servings and number of calories per serving or to list the
number of calories per the common unit division of the standard
menu item, such as for a multi-serving item that is typically
divided before presentation to the consumer.
So the question is, do you think that the FDA final rule
and H.R. 2017 are offering two different approaches to
accomplishing the same policy goal? Or are there substantive
differences between them? And if there are difference, could
you explain their implications.
Ms. Wootan. So, actually H.R. 2017 has one other option and
that is to list the nutrition information by the serving size
or the common unit of subdivision unit without having to list
the number of servings, which would be different than what FDA
has.
So, for example, you could reduce the number of calories in
a pizza overnight by slicing it into 10 slices instead of 8
slices. You could take a plate of chicken wings and you could
just put half the chicken wings on one side of the platter and
the other half of the chicken wings on the other and say it is
two servings and then change the calories from 1,000 calories
per appetizer to 500.
So this, the law as written would not require that the
number of servings be listed. And without that information, it
is very difficult for consumers to be able to compare options.
Even with the servings listed, it is really difficult.
So, say, an appetizer of nachos is listed as 4 servings and
the chicken wings is listed as 2 servings. You can't really
compare how those would stack up for you personally. It is much
easier to list the calories for the whole appetizer, the whole
pastry, the whole dessert. And then people can compare options
and decide which one they want for themselves.
This is not about, he left already, telling people what to
eat. This is about giving people information so that they can
make their own choices about how many calories they want to
eat, given what a terrible health burden there is from obesity
and other diet-related health problems.
Mr. Pallone. All right thank you. Let me ask Ms. Raskopf,
we have heard from pizza places and convenience stores about
the difficulties they face with coming up with calorie counts
for the myriad of choices they offer, whether it is the 34
million different combinations of pizzas or the 40 different
calorie counts that are possible with self-serve soda machines.
I have to imagine that restaurants also face similar
difficulties, given the breadth of items and combinations they
also serve on their menus.
So could you tell us whether things are just much simpler
for the restaurant industry or whether you are finding ways to
address similarly complicated issues?
Ms. Raskopf. Yes, I think we are all very similar. I spent
15 years working at 7-Eleven. My CEO was, previous to coming to
Dunkin' Brands, was the CEO for Papa John's. So I think we have
a good understanding of the challenges that all of us in the
food industry face.
We as Dunkin' Brands have a very complex business. Like I
said, we have thousands of different combinations that we can
offer to consumers, sandwiches, coffee, ice cream when you
factor in Baskin-Robbins. We are located in 1,600 convenient
stores. We have free-standing restaurants. We offer manager
specials. We have tests. We have limited-time offers. It is
very complex. I empathize with everybody here. But we have
spent the last year figuring out how to label our products, to
make nutritional information available to our consumers. And I
feel all of us can do the same thing.
And may I add, I am sorry that the honorable Congressman
from Illinois left, but to say that people are not interested
is a mistake. Every month, 400,000 individuals visit
blockbuster.com and baskin.com pages to get nutritional
information every month. Millennials, in particular, care about
this information.
Mr. Pallone. I think you are right. I mean, I think that I
am a little bit like Mr. Shimkus in that I don't pay much
attention to it. But I think maybe that is because we are
older. I think younger people pay a lot of attention. And maybe
we should pay more attention frankly. So thanks a lot.
Mr. Pitts. The chair thanks the gentleman and now
recognizes the vice chair of the subcommittee, Mr. Guthrie, for
5 minutes for questions.
Mr. Guthrie. Thank you, Mr. Chairman. Thank you all for
being here and speaking to us today. Ms. Raskopf, on Dunkin'
Donuts, I know you all are located in New York City. So New
York City started this, what, in 2007 I believe? So you have
been working on menu labeling for how long? Seven years, seven
or eight, almost eight years?
Ms. Raskopf. We have been working on it hard and fast for
the past year. But, certainly, we have had some more insights
into this than perhaps some others at the table who don't have
operations in some of the localities that have nutritional
labeling----
Mr. Guthrie. Was it difficult complying with New York
City's laws?
Ms. Raskopf. I remember sitting around a table just like
here today saying we can't do this, we can't do it. And we did
it. So we were able to----
Mr. Guthrie. You say you have been working on it for the
last year. But how long were you working--New York City has had
it since 2007.
Ms. Raskopf. New York City, we were able to get that into
place, I believe that was 2008 we were able to get that into
place. We had a deadline we had to meet and we met it.
Mr. Guthrie. Are the New York City standards similar to the
Federal standards? Are they more difficult or are they----
Ms. Raskopf. We have been assuming that they were very
similar to FDA. And as we have talked to them, that has been
our feeling about it, that it is similar.
Mr. Guthrie. OK. Another question, so, just acknowledge, I
mean, when you look back, and all of us want people to eat more
nutritional. I mean, I was at something last evening, they had
a menu label up, anywhere from, it was a soda, anywhere from
zero to 1,080. And so I guess it picks on the size you get or
whatever. That was enough information for me to say I know
which one I am going to get because I want to go closer to the
zero than the other way. And so just trying to, what is
reasonable to make people more healthy.
I just went to our schools. And we actually have a lady in
Daviess County, Kentucky making sure that kids only get three
pickles if they get a cheeseburger. Because if they get four
pickles, they violate Federal law. I mean, that sounds silly to
sit here any say that. But that is absolutely true. And so what
we are trying to say, I mean, that is actually fair. I will
take people and show it to you.
And so how do we get information in people's hands that I
think the vast number of American people want. I think that
they want the information but in a way they can sit back and
say Washington is doing things that are reasonable. And so we
talk about having to display 34 million different pieces of
information if you take, I don't know how many ingredients you
have, but if you factor it out, I understand, 34 million, it
just gets almost, online, I think, Dr. Wootan, you said
something to the point that menu labeling software is very
inexpensive.
But if you take menu labeling software that is very
inexpensive to come up with your calories and you have to print
34 million different combinations or if you have to print it
all through your stores, you know, I think what is simple, we
talk about young people wanting information, my kids live on
their phone.
So why not have it displayed in an electronic way that
people have access to and they can always have it. That just
seems to make sense to get the information to the people and
take care of all the different problems. I don't know why that
doesn't make sense. Would that be easier, Ms. Hubbard, if you
were, down the line, if you were able just to do electronic?
Ms. Hubbard. Yes, sir. And we have already looked into
both, having that on our Web site and we have a mobile app. As
you point out, I think the millennials and the younger
generations do, they live by those. And that would be a way to
easily gather. And they can even do combinations. And it could
mathematically compute those.
While I will, I agree that most of that generation may need
some of that. But what I, along with Ms. Raskopf, I will
disagree with her that our locations are similar. If you have
ever walked in a Dunkin' Donuts, there is one point of purchase
and one menu board. Ours are split throughout the location. I
mean, you could have 10 places you go to in my stores and,
based upon the rules that are written and advertisements, we
would have to post the menu combination on every single one of
those pieces.
Mr. Guthrie. I agree with my friend from Washington's
legislation, it says we agree, we want everybody to have
information, how can we do this in a way that people don't hold
back? I mean, I could take you to Daviess County, Kentucky and
show you the lunchroom lady making sure kids get three pickles
with a hamburger, there is a labor they are putting there,
instead of four. And they can't reach in and get it out of the
jar and put it on their plate because if they put the glove on
and do it, they might give them four. And it violates Federal
regulations. And so those are what we are trying to get to.
I don't know, Mr. O'Quinn, if you want to talk, and Ms.--
just dealing with, I know you all want to offer this
information in a way that works and doesn't look absurd when
you go, when reporters go with you to a school and say are you
kidding me, is there somebody in Washington, D.C. Worried about
whether a kid gets three or four pickles? Is that what our
Federal Government is doing? And I said that is absolutely
true. That is why you are here. I didn't stage these lunchroom
workers to tell you that. They are here doing that. So----
Mr. O'Quinn. Sir, I think you can absolutely have
information overload. Like I said, our tags already have a
NuVal score. You have front-of-package labeling. You have the
larger back-of-package labeling. You are talking about a lot of
labels on one single food. And, frankly, you could put a label
across the front, just like a tobacco product, that says this
product will make you obese. And I promise you, people are
still going to buy that product if they want it.
So I don't think that, you know, I think we are kind of
arguing apples and oranges here. Everyone wants people to be
healthier. But in the end, they are going to eat what they want
to eat. And it doesn't matter what you put on there, they are
going to get what their taster is set for, for that day.
Mr. Guthrie. I am one, I know I am over my time, but I am
one that, I almost never pick up something that has that label
on it and not read the calories. So I am one that is coming
from I want to know the calories. But let's do it in a
reasonable way. Thank you.
Mr. Pitts. The chair thanks the gentlemen and now
recognizes the gentleman, Mr. Schrader, for 5 minutes.
Mr. Schrader. Thank you, Mr. Chairman. I guess for Dr.
Wootan and Ms. Raskopf, these rules, actually to everybody,
obviously, this rule is not ready for prime time. We have had
considerable discussion about what it is going to do, how it
would be implemented. I understand that. And, you know,
although the rules have come out, it is my understanding that,
you know, there has not been a whole lot of guidance going on.
And some of you already addressed this, some of us sent a
letter asking for a little bit of a delay to, hopefully, iron
out, get some more guidance before we went prime. I am grateful
for this hearing and actually for this bill so that we can look
at what options we may have to make this actually reasonable
and work. Because I think, like everybody has testified, we
want to actually have good information out there for our
consumers. I think that is good.
But I am curious, I ask, I guess, Ms. Raskopf and Dr.
Wootan, do you think a little bit more time is needed? Or is
this, should we just get to it and do up and down votes on this
type of legislation.
Ms. Raskopf. I think there is a lot of common ground here
with all of us. And I think we could focus on that. First of
all, I think that we agree that an additional year is fine. We
at Dunkin' Brands are ready to go now. But we are willing to
say that if others need more time, that is fine. I think the
other thing we look at is we all want to get that final
guidance from the FDA. We want to make it clear that
promotional and advertising materials are not covered by this
as the law intended. We want to know that when we reformulate a
product, how long do we have to give that information to the
public.
So I think that we can all agree that there is a good deal
of common ground here. And we just need to get that final
guidance from the FDA. But I don't think that it is additional
legislation that is needed, it is the final guidance from the
FDA.
Mr. Schrader. Dr. Wootan?
Ms. Wootan. I think many of us expected that food
establishments would be able to implement menu labeling
directly from the final rule. But it has turned out that they
have lots of questions that need answering that go beyond just
mere interpretation. And so guidance is necessary. And that
guidance is going to take a little bit longer because there
will be an opportunity for public comment.
I mean, clearly hearing people testify today, I think many
of them don't have a full understanding of what is required.
Certainly 34 million possible combinations of pizza is not
required by law. If they don't recognize that, I think their
lawyers need to read the regulations a little more carefully.
Some of the other things about having 10 different signs in
the convenience is not required by law. So, I mean, there is
clearly some misunderstanding about what the law requires. And
the guidance will help to clarify that. I think also as some of
them become more familiar with the regulations, they will
realize that this is not as burdensome as they think it is.
Just like the restaurants did 10 years ago, when I first
started working on menu labeling in Oregon and other places
around the country, I heard the same complaints from the
restaurant industry. But once they started to do it, they
realized this is not as complicated as it seemed. They worked
through it. They did it. It did not cost them a lot of money.
It did not hurt their business. Their customers really like it,
use it. And it is helping them to make lower-calorie choices
when they want to.
Mr. Schrader. I appreciate that. Mr. Chairman, I ask that
the letter that a lot of Senators, Representatives, put in be a
matter of the record, if that is all right, sir.
Mr. Pitts. Without objection, so ordered.
[The information appears at the conclusion of the hearing.]
Mr. Pitts. And also I have another UC request from the
ranking member, a letter from Wegmans put in the record.
Without objection, so ordered.
[The information appears at the conclusion of the hearing.]
Mr. Schrader. Just a last question, I guess, for maybe Ms.
Liddle. Other states have gone their own way on this and
already, as we have heard, implemented labeling requirements
for convenience stores, grocery stores, everything. So how are
you, how have you dealt with that so far? And isn't there an
opportunity maybe with some sort of Federal, hope a better
Federal guideline to make it easier for you guys to compete in
different venues across the country?
Ms. Liddle. Sure. We originally and always have agreed that
a Federal preemptive law is a good idea because we have been
dealing with a patchwork of different municipalities and
changes. But my argument isn't about how difficult it is to get
the 34 million ways up. I actually already do that online. Any
pizza that you can concoct in your head, I can give you the
actual calories for that slice. And so I want to do that for my
consumers. What I don't want to do is retrofit onto a menu
board just to fit in the box of the law.
To say well, put ranges, you don't have to put all 34
million, the law doesn't make you do that. That is true. But I
want to do that. I want to do that because it is the right
thing to do. What I don't want to do is put ranges that
consumers will not understand and make my small businesses
franchisees pay for that.
Mr. Schrader. OK very good. With that, I yield back. Thank
you, Mr. Chairman.
Mr. Pitts. The chair thanks the gentleman, now recognizes
the gentleman from Pennsylvania, Dr. Murphy, 5 minutes for
questions.
Mr. Murphy. Thank you, Mr. Chairman. And I thank this
panel. It is an important issue we are trying to deal with,
obesity in America. I need to get into some other areas here
because I want to look at this picture globally. None of us
want to have the epidemic of obesity and the problems it brings
along with this.
There is a lot more that goes with this. As you know, there
are a couple schools I have been monitoring over the years not
in my district. One is a very famous study done with Naperville
Schools outside of Chicago. They actually required physical
activity, intensive, not just battle ball, throw the ball, get
hit, sit down so you are not doing anything, but real
cardiovascular activity, where they wear monitors. And they
found that their obesity rate plummeted. And they found that
kids who were involved in these activities, their reading
scores went up, their math score went up dramatically. Similar
studies have been done in Cambridge, Massachusetts and other
places. But it does raise other issues.
So calories itself, I am concerned about, is a very
passive, small number. And if you look at studies out there of
cause of obesity, it includes genetics, family history, age of
the person, pregnancy, sleep levels, emotional wellness,
medications they are on, other health conditions, such as
thyroid and adrenal gland functioning, smoking. Anybody propose
we put all those things on the message boards too? Because
those are going to be much more predictive. In other words, if
what you do is sit in front of your TV and eat our food and
that is all you do, you will get fat. I don't care what
restaurant it is.
And I get concerned that we are taking out, pardon the pun,
such a small slice of information here, that we are not getting
Americans the information to get off your butt and move. That
is what it ought to be.
Now, I like it when some restaurants actually say that,
some box of cereal say that. Good for them. I think that is a
powerful message for kids. But I start to look at also how
these messages go through. And we are going to have some things
that I am not quite sure get the whole thing out. If we are
going to be comprehensive, let's be comprehensive. I mean, for
example, I understand that daily chef specials are going to be
exempt from this. Is that true?
Ms. Wootan. That is true.
Mr. Murphy. Does that, is it more, and why is it more
difficult to provide nutrition information in a grocery or
convenience store than in a restaurant? Could someone tell me
that?
Ms. Wootan. It is not.
Ms. Hubbard. Yes, sir. I think our concerns are, and I
think Ms. Wootan said that it wouldn't be hard, we wouldn't
have to have multiple menu boards. Well, I may need new lawyers
because mine advised me I do.
And when I read the regulations, it is anyplace adjacent.
So anyplace I offer food and/or advertising combinations, that
would conclude even the fountain drink that maybe is over on
this side of the building because I am offering it as a bundle
here, again, adjacent to that product. So it is the number of
menu boards and postings that I would have to have and the
enormous combination. And I truly believe it would be
information overload for consumers.
Mr. Murphy. Now, you also compete for customers against
traditional restaurants too?
Ms. Hubbard. My particular stores do not. We offer limited
food offerings. But we operate rural----
Mr. Murphy. Prepared food?
Ms. Hubbard. Prepared food, yes, sir.
Mr. Murphy. OK.
Ms. Wootan. They actually have many fewer items than in
most convenience stores than at a lot of sit-down chain
restaurants. So they will have fewer items to analyze. And they
don't have to send those items to a lab, which is the cost
estimates that you have seen. You can just run those recipes
through menu analysis software or get them from a supplier or a
database or a cookbook.
Mr. Murphy. And those that have online or kiosk ordering,
as part of this, are we going to have the technology to provide
that kind of information on the kiosk? When you say I want the
special number 1, it is going to flash--is that what we are
going to be doing? Is that what you are proposing? Dr. Wootan?
Ms. Wootan. The calorie information disclosure is tied to
the method through which the food service establishments
provide information. So if you are a restaurant that has a
printed menu, the calories would be there, if you are a
restaurant that has a menu board. If you have foods on display,
like your donuts on display at Dunkin' Donuts, the calories
would be next to each donut. So the way the information is
provided will depend on the way that the food service
establishment decides to give information to their customers
about what is available and the price.
Mr. Murphy. But there is individual reactions to those too.
I mean, it is different if you say, if you smoke, you got a
pretty high percentage risk you are going to get an illness
from that. Not everybody who smokes gets cancer. But it is a
high percentage. Not everybody who gets cancer smokes.
But I wonder about this, do we reach the point, we give
people this false sense of security, if you only know your
calories, you are going to be oK. And all those other factors I
mentioned, I am actually more concerned about kids that are not
moving. Because it is that formula, you have to, if you take in
the same amount of calories as you burn, you don't gain weight.
If you take in more than you burn, you gain weight, et cetera.
So I think we have a long way to go on this in terms of
other things with health promotion. But I see my time is up, so
I am going to have to yield back. Thank you.
Mr. Pitts. The chair thanks the gentleman. Members are
advised we are now voting on the floor. So we will keep going
for, watching the vote total. I will get us over there in time.
The ranking member submitted another letter for, a UC
request to be submitted to the record, signed by Congressman
Loebsack, Welch, Kilmer, Ruppersberger, and Schrader to
Secretary Burwell. Without objection, it will be entered in the
record.
[The information appears at the conclusion of the hearing.]
Mr. Pitts. And the chair recognizes the gentlelady from
Illinois, Ms. Schakowsky, 5 minutes for questions.
Ms. Schakowsky. Thank you, Mr. Chairman. This is a little
bit of dj vu for me, my career, it seems, started, I didn't
know it then, started in the grocery store 45 years ago when a
small group of housewives wanted to know how old our food was.
Because everything was code dated. And we did, like detectives,
cracked some of the codes and found things in the grocery store
that were days, weeks, months, and years beyond the date. We
didn't question the dates. And now everybody looks at the
dates. I like to look at, stand in the dairy section and watch
people check those milk dates, which they do.
We want to encourage people to look at the calories.
Whether or not my colleague from Illinois does, maybe he
should. And maybe we all should. And I want to suggest in terms
of pizza, if there were a board that said on a slice of pizza,
this is how much sausage adds to that slice, this is how much
pepperoni adds to that slice, I can figure out, at least
relatively, whether I get a sausage pizza or a pepperoni pizza
or if there is a difference at all. Or if I get mushrooms or
whatever, I could see that. This is not hard. And, I'm sorry,
it is not hard to list the additions that you have on a pizza
so that I could check and see which is the better choice if I
am watching calories.
There may be a gender difference here too. I don't know a
woman who doesn't look at the calories on food that we are
buying. And we all should. In terms of the grocery stores, many
serve as catering operations also. Why on a catering menu,
would it be harder to list what the calories are on those
things? I would make decisions, I do get catering things from
my grocery store. I would like to know that. What is the
difference between, if there is one, a ham sandwich or a turkey
sandwich and that kind of thing when I am having a party.
The cost of obesity is, just for the healthcare cost is
projected to be $344 billion by 2018. So even if you don't care
about diabetes and all the other related things to obesity, we
ought to be caring about the cost of, you know, what it costs
us, what it costs our healthcare systems to treat obesity. And
that, I think, would be one of the most important pieces of
information.
So I don't quite understand the problem here. I did want to
ask, who is pizza, Ms. Liddle--yes, why is this not a simple
idea? And the FDA actually suggested it.
Ms. Liddle. Well, to do as you suggest, to put the
information that you just described on a menu board, it would
be very, very hard to read. And it would be a little bit like a
forest or a tree falling in the forest and nobody hearing it.
Ms. Schakowsky. Wait, excuse me, I am sorry, you have got
price and you got calories, these arguments are just silly to
me.
Ms. Liddle. Well, there is nobody in the store, virtually,
almost nobody in the store to look at the suggestions that you
are making. But I do want to do exactly as you suggest and as
you started out in the grocery store, I want to be able to give
you that precise information online. To put it on----
Ms. Schakowsky. No, no, no. I wasn't saying that about the
grocery store. Now, if you go to the grocery store, lucky us,
you see that date, expiration date, use by date, whatever, on
the product. And, believe me, people want it.
Ms. Liddle. And we have it. We have been disclosing it
voluntarily for 14 years.
Ms. Schakowsky. Online?
Ms. Liddle. Online----
Ms. Schakowsky. I care about young people too. But I am
telling you--of course, juvenile diabetes and juvenile obesity
is a problem. But it is certainly more than just young people.
I wondered if you wanted to comment, Dr. Wootan?
Ms. Wootan. Well, there are a lot of people going into
pizza restaurants. It may only be 10 percent. But those people
who do go in have the right to nutrition information just like
those people who are ordering online. If they don't think it
matters, then they don't need to have a menu board and list out
all the options that are there. But if they have a menu board
and think that people need to know what is on the menu and list
the prices for it, then they need to post the calories.
Because, as you say, obesity really is one of the most pressing
public health problems.
Ms. Schakowsky. Let me also say when I order pizza, there
is also a menu usually attached to it so I can do it, you know,
by phone or online again. Why not on that menu just list that?
Ms. Liddle. That is what we are proposing in our
legislation. We are proposing that we bring the calorie
information right on the electronic or the online menu. So----
Ms. Schakowsky. No, no, no. When I get the pizza, there is
usually a paper menu attached to it. Why couldn't it be on
that, on a carry-out menu?
Ms. Liddle. Well, we consider those to be promotional
materials. They are ads with flyers that say order this
special, which is one of the other problems with the
legislation for us and many restaurants.
Mr. Pitts. The chair thanks the gentlelady. We have 8
minutes left in the vote. The chair recognizes Cathy McMorris
Rodgers for 5 minutes for questions.
Mrs. McMorris Rodgers. Thank you, Chairman. And I must
admit, I, too, do look at the calorie counts. And my Democrat
colleague and I, Loretta Sanchez, I think, probably share that
in common. What we are trying to do and why we have been
working with everyone to accomplish the goal of providing this
information in a commonsense way. And that is the purpose of
the legislation, is to accomplish the goal of the calorie
counts in a commonsense way.
And I appreciate everyone being here today. I wanted to
start with Ms. Hubbard. I understand that you own almost 300
stores, is that correct.
Ms. Hubbard. Yes, ma'am.
Mrs. McMorris Rodgers. Did you purchase them all at once?
Ms. Hubbard. No. We have been in business for 15 years. And
we have built some in 1970 that have evolved and morphed. We
have acquired many stores and even our construction model has
changed.
Mrs. McMorris Rodgers. Are they exactly the same on the
inside?
Ms. Hubbard. None of them.
Mrs. McMorris Rodgers. So do you sell the exact same stuff?
Ms. Hubbard. No. Because we operate in four States and
different markets. And the consumer demand and competition
would merit different servings at different stores so.
Mrs. McMorris Rodgers. So is it possible that you might
need to design, buy, and install a different menu board at each
location?
Ms. Hubbard. Essentially every single location, yes, ma'am.
Mrs. McMorris Rodgers. So how much do you think this will
cost you?
Ms. Hubbard. I am trying to figure out compliance and how
many different menus we have, we think it will easily hit $1
million for our locations.
Mrs. McMorris Rodgers. Thank you. Next I wanted to go to
Ms. Liddle from Domino's. A bipartisan group of House and
Senate Members recently sent a letter to the FDA requesting a
1-year delay on the enforcement of the regulation. Do you
support a delay on the enforcement of this regulation?
Ms. Liddle. We support and appreciate that. However, we do
not think it is the solution. We really believe that we need a
legislative fix.
Mrs. McMorris Rodgers. Do you think that even with a delay,
you and your franchisees could be able to eventually comply
with this regulation?
Ms. Liddle. We could put ranges of calories on menu boards
that would not make sense to consumers and that would cost our
small franchisees a lot of money. We could do that, yes.
Mrs. McMorris Rodgers. Do you think that others in the
pizza community, Papa John's, Pizza Hut, Godfather's, feel the
same way?
Ms. Liddle. I think the smaller the company, the more
difficult it becomes because of the cost of compliance.
Mrs. McMorris Rodgers. Do you, as the rule is currently
written, could you or one of your store managers potentially be
criminally charged for failing to comply?
Ms. Liddle. The way the law is currently written, there are
criminal penalties because you have to certify that the
information is correct both at the corporate level and at every
store. There are 75,000 pizza stores in the United States. So
that is a lot of paperwork, one. And there are lots of
teenagers who make handmade products.
And even though we have very precise recipes for each
thing, they can be off a little bit if they are just a little
heavy-handed with the cheese or if they don't put as many
pepperonis on, it is not going to be the same calories exactly.
And I don't think that warrants sending a kid to jail.
Mrs. McMorris Rodgers. OK, thank you. Next, Ms. Raskopf, I
wanted to ask who is responsible for having the correct calorie
count at each location? The individual manager or someone in
the corporate office.
Ms. Raskopf. If it is something that coming out from our
central menu, something that most of the restaurants are going
to carry, that is something that we at the corporate office do.
There are things like manager specials. And those would be
exempt is our understanding.
Mrs. McMorris Rodgers. OK. If the FDA or a local law
enforcement officer were to come in and find that, for example,
a donut had been over-sprinkled and, therefore, did not comply
with the posted calorie count and was outside the allowable
standard, who would be at fault?
Ms. Raskopf. Well, the reasonable basis standard under the
FDA protects all of us in the food service industry. They
understand that when you are making hand-prepared food, there
will be errors. My understanding with the FDA is really this is
all about, any penalties are there to try to go after anybody
who would deliberately mislead the public. It's not there to
catch people----
Mrs. McMorris Rodgers. OK. Is it possible that one of your
employees could be potentially charged with a criminal charge?
Ms. Raskopf. No. That is not our understanding. That is
incorrect.
Mrs. McMorris Rodgers. So then who do you think would
receive the citation or the criminal charge?
Ms. Raskopf. Our understanding is that the FDA, that there
would be, we are still waiting for more guidance on that. But
what we understand is that that information would be given to
us and would give us time to correct that.
Mrs. McMorris Rodgers. OK. OK and then to, I wanted to ask
Ms. Liddle and Mr. O'Quinn, I would say that the two of you are
quite different and also different from others on the panel,
such as Dunkin' Donuts. Do you think this regulation tries to
treat entities which are actually quite different in a cookie-
cutter fashion which doesn't make sense? Maybe you can just say
yes or no because I am out of time.
Mr. O'Quinn. Yes.
Ms. Liddle. Yes.
Mrs. McMorris Rodgers. OK. Thank you.
Mr. Pitts. The chair thanks the gentlelady. And we have
less than 3 minutes to get to the floor and vote. The chair
recognizes the gentleman, Mr. Griffith, for 5 minutes for
questions.
Mr. Griffith. Thank you, Mr. Chairman. Again, great to see
you, Delegate O'Quinn. Appreciate you coming to Capitol Hill to
bring us some wisdom from southwest Virginia up here. Is there
anything that you wanted to talk about that you haven't had an
opportunity to talk about?
Mr. O'Quinn. Well, thank you, Congressman Griffith. I would
just say this has been a very frustrating processes. We meet
with, our industry meets with FDA on a regular basis.
Mr. Griffith. And you are not talking about the hearing,
you are talking about this----
Mr. O'Quinn. No. The hearing has been smooth as silk.
Mr. Griffith. Thank you.
Mr. O'Quinn. But the process throughout the fleshing out of
this has been difficult. Because we meet with FDA on a regular
basis on a wide variety of topics. And this has been one
particular topic in which they have been absolutely unwilling
to meet or communicate. And so here we are discussing a delay
versus some clarity and reasonable flexibility. But it has been
a very frustrating process. But we do appreciate the
opportunity to be here today to air our side of this story.
Mr. Griffith. Well, thank you very much for being here. I
will ask both you and Ms. Liddle, the concerns about, we have
heard both today the concerns about somebody being charged with
a felony, I guess Ms. Hubbard, as well. And one of the things
you said, Ms. Liddle, was that as currently written.
Now, intent is a good thing. But as a lawmaker for a number
of years, only a few years here but a long time in the Virginia
legislature, if you don't make it clear, somebody will
misinterpret the intent. And while the intent may be not to
charge your worker with a felony because they get a little
excited with the cheese on the pizza or something where they
don't follow the exact recipe, you have said the way it is
currently written they could be charged. Is it a problem of the
difference between the actual wording of the statute and the
intent? Or do you all just disagree completely----
Ms. Liddle. Well, I am not a lawyer, but it is my
understanding that this falls under the Food and Drug Cosmetic
Act. And under this, there is a sort of a presumption of guilt
ahead of time. There are criminal penalties that could be put
on folks and I----
Mr. Griffith. So you might like to see some words like
intentionally and repetitively or a pattern of intentional
behavior?
Ms. Liddle. As opposed to inadvertently correct. And I
agree with Mr. O'Quinn, it has been a frustrating experience
waiting for rules from FDA. And I, frankly, don't trust that
the ultimate outcome of their rules will be correct. And so I
really believe that we need this fix.
Mr. Griffith. Well and I appreciate that. And I would
probably have some more questions for you. But the votes are on
the floor. And I know the chairman has been very patient to let
me have this time. I thank each and every one of you for
testifying. And I hope we can straighten this out. I yield
back.
Mr. Pitts. The chair thanks the gentleman. The time has
expired on the floor. We have additional questions. I am sure
members will. We will submit those to you in writing. If you
will please respond.
This has been a very, very interesting, informative
hearing. I remind members that they have 10 business days to
submit questions for the record. I ask witnesses to respond
promptly. Members should submit their questions by the close of
business on Thursday, June 18.
So thank for your patience, your testimony. And it is time
for lunch I think. With that, excellent hearing. Without
objection, the subcommittee is adjourned.
[Whereupon, at 11:41 a.m., the subcommittee was adjourned.]
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