[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]                           


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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

                              ----------                              
                                                                   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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