[Congressional Record Volume 162, Number 25 (Thursday, February 11, 2016)]
[House]
[Pages H722-H728]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PROVIDING FOR CONSIDERATION OF H.R. 2017, COMMON SENSE NUTRITION
DISCLOSURE ACT OF 2015, AND PROVIDING FOR PROCEEDINGS DURING THE PERIOD
FROM FEBRUARY 15, 2016, THROUGH FEBRUARY 22, 2016
Mr. BURGESS. Mr. Speaker, by direction of the Committee on Rules, I
call up House Resolution 611 and ask for its immediate consideration.
The Clerk read the resolution, as follows:
H. Res. 611
Resolved, That at any time after adoption of this
resolution the Speaker may, pursuant to clause 2(b) of rule
XVIII, declare the House resolved into the Committee of the
Whole House on the state of the Union for consideration of
the bill (H.R. 2017) to amend the Federal Food, Drug, and
Cosmetic Act to improve and clarify certain disclosure
requirements for restaurants and similar retail food
establishments, and to amend the authority to bring
proceedings under section 403A. The first reading of the bill
shall be dispensed with. All points of order against
consideration of the bill are waived. General debate shall be
confined to the bill and shall not exceed one hour equally
divided and controlled by the chair and ranking minority
member of the Committee on Energy and Commerce. After general
debate the bill shall be considered for amendment under the
five-minute rule. It shall be in order to consider as an
original bill for the purpose of amendment under the five-
minute rule the amendment in the nature of a substitute
recommended by the Committee on Energy and Commerce now
printed in the bill. The committee amendment in the nature of
a substitute shall be considered as read. All points of order
against the committee amendment in the nature of a substitute
are waived. No amendment to the committee amendment in the
nature of a substitute shall be in order except those printed
in the report of the Committee on Rules accompanying this
resolution. Each such amendment may be offered only in the
order printed in the report, may be offered only by a Member
designated in the report, shall be considered as read, shall
be debatable for the time specified in the report equally
divided and controlled by the proponent and an opponent,
shall not be subject to amendment, and shall not be subject
to a demand for division of the question in the House or in
the Committee of the Whole. All points of order against such
amendments are waived. At the conclusion of consideration of
the bill for amendment the Committee shall rise and report
the bill to the House with such amendments as may have been
adopted. Any Member may demand a separate vote in the House
on any amendment adopted in the Committee of the Whole to the
bill or to the committee amendment in the nature of a
substitute. The previous question shall be considered as
ordered on the bill and amendments thereto to final passage
without intervening motion except one motion to recommit with
or without instructions.
Sec. 2. On any legislative day during the period from
February 15, 2016, through February 22, 2016--
(a) the Journal of the proceedings of the previous day
shall be considered as approved; and
(b) the Chair may at any time declare the House adjourned
to meet at a date and time, within the limits of clause 4,
section 5, article I of the Constitution, to be announced by
the Chair in declaring the adjournment.
Sec. 3. The Speaker may appoint Members to perform the
duties of the Chair for the duration of the period addressed
by section 2 of this resolution as though under clause 8(a)
of rule I.
Sec. 4. The Committee on the Judiciary may, at any time
before 5 p.m. on Tuesday, February 16, 2016, file a report to
accompany H.R. 3624.
The SPEAKER pro tempore. The gentleman from Texas is recognized for 1
hour.
{time} 1230
Mr. BURGESS. Mr. Speaker, for the purpose of debate only, I yield the
customary 30 minutes to the gentleman from Colorado (Mr. Polis),
pending which I yield myself such time as I may consume. During
consideration of this resolution, all time yielded is for the purpose
of debate only.
General Leave
Mr. BURGESS. Mr. Speaker, I ask unanimous consent that all Members
have 5 legislative days to revise and extend their remarks.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Texas?
There was no objection.
Mr. BURGESS. Mr. Speaker, House Resolution 611 provides for a rule to
consider a commonsense, bipartisan piece of legislation that will fix a
problem that was wholly created by the intransigence of the bureaucrats
at the Food and Drug Administration. This important bill amends the
difficultly drafted Affordable Care Act, which rigidly mandated that
food establishments provide physical notices of the nutritional value
of every food item that they offer.
Perhaps this is a noble endeavor in theory, until one considers that
the inflexible rule put out by the Food and Drug Administration makes
no allowances for establishments that allow for multiple variations of
their offerings. This could mean that a pizza chain, for example, would
have to provide calorie counts for every possible different type of
pizza combination that one could order, a mandate that would result in
a pizza place needing to literally wallpaper their establishment, and
perhaps the establishment next door, with all of the different
scenarios for personalized pizzas.
The rule provides for 1 hour of debate. It is equally divided between
the majority and the minority of the Energy and Commerce Committee. The
Committee on Rules made in order every amendment that was submitted to
the committee to be considered, two Democratic amendments and one
bipartisan offering. Finally, the rule affords the minority the
customary motion to recommit, a final opportunity to amend the bill
should the minority choose to exercise this option.
Mr. Speaker, the issue before us today in the underlying bill is not
about whether restaurants should provide their customers with
nutritional information; the issue is fundamentally one of the proper
role of government. Since President Obama moved into the White House
and Nancy Pelosi and Harry Reid served as his stewards in the 110th
Congress, the Democrats have drummed a steady beat toward expanding the
role of government in every direction in our lives.
H.R. 2017, the Common Sense Nutrition Disclosure Act, is bipartisan
legislation introduced by Representatives Cathy McMorris Rodgers and
Loretta Sanchez to fix the Food and Drug Administration's unworkable
implementation of the menu labeling law. The Food and Drug
Administration's regulatory framework is not just cumbersome for the
food industry, it also impedes a business' ability to provide
meaningful information that customers can use to make nutrition
decisions.
The Common Sense Nutrition Disclosure Act is critical to avoid
harming consumer choice, harming jobs, and harming small business. The
Federal Government should not presume to know how restaurants,
supermarkets, cafes, convenience stores, and entertainment venues can
best serve their customers and run their businesses, yet the Food and
Drug Administration has done exactly that.
For years now, many restaurants and retail food establishments have
disclosed caloric information to their customers. This industry
expertise should have been instructive to the Food and Drug
Administration as it developed the Federal regulation. In fact, the
Food and Drug Administration took 3\1/2\ years before finalizing a rule
that virtually ignores serious concerns raised about the harm of an
overly prescriptive, one-size-fits-all approach.
Not only did the FDA disregard the input of consumers and industry
experts, it also extended the scope of the regulation far beyond what
anyone could have imagined when they voted for this bill in March of
2010. If the Food and Drug Administration is allowed to implement the
rule as it stands, the Office of Management and Budget has determined
it will require more than 14 million--14 million--compliance hours, in
addition to costs exceeding $1 billion. Even the Food and Drug
Administration acknowledged that initial compliance will cost almost
$400 million, with recurring costs as high as $150 million per year.
Likely, the actual costs for the private sector will far exceed those
estimates.
Perhaps even more concerning than the costs, food service
establishments. Food service establishments are going to face Federal
criminal penalties for even the slightest failure to comply with the
framework envisioned by the Food and Drug Administration.
Under section 403(a)(1) of the Food, Drug and Cosmetic Act, food
labeling must be truthful and not misleading. Food labeling that does
not meet the Food and Drug Administration's standard for ``truthful and
nonmisleading''
[[Page H723]]
is deemed ``misbranded.'' Under the U.S. Code, introducing misbranded
food into commerce is a prohibited act, and the liable party shall be
imprisoned for up to 1 year, fined not more than $1,000, or both.
Food to which these menu labeling requirements apply is deemed
misbranded if the Food and Drug Administration's rule requirements are
not met. It is not necessary that the person intentionally mislead
customers. Under the Food and Drug Administration's framework, merely
adding an extra slice of pepperoni will render the calorie content on
the menu misleading, and your chef is now a criminal.
People say that the Food and Drug Administration won't put people in
jail over this, so I don't think there should be an issue in saying
just that, that people will not be put in jail for an extra slice of
pepperoni. I don't think there is a problem with codifying that in
statute. I think it will give great reassurance to food preparers in
the industry.
The Food and Drug Administration's regulation is applicable to
restaurants and similar establishments that sell ready-to-eat food that
are part of chains with at least 20 stores. This would include
bakeries, cafeterias, coffee shops, convenience stores, delis,
entertainment venues, food service vendors, fast-food take-out or
delivery establishments, grocery stores, confectionery stores, quick
service restaurants, and table service restaurants.
Although stores may be part of a nationwide chain, there is
substantial variation between regional locations. For example,
convenience stores noted in their testimony that, unlike a McDonald's
or a doughnut shop that have the same format everywhere they go, many
convenience stores have different layouts based upon region, so coming
up with a uniform standard would, in fact, be challenging. This means
that all chains will incur individual costs for nutritional analysis
and for menu labeling for each location, not just one time done at the
national level.
Under the rule, the definition of a menu is applied broadly to mean
any writing a customer uses to place an order. This approach would
include everything from in-store menu boards to print advertising in
the form of door hangers or circulars or online advertising. The rule
requires that each menu item have a clearly visible calorie count,
including separate calorie information for variable menu items such as
toppings or flavor additives.
Pizza chains estimate that there are over 30 million combinations
available to customers; and the calorie content for each option
couldn't fit on any menu board that I have ever seen. Grocers estimate
that the rule would include hundreds of items in stores that are
offered subject to availability and demand, things such as fresh
produce, baked goods, seafood, making it virtually impossible to have
accurate menu boards without changing them on a nearly constant basis.
Many of these businesses would likely stop offering the range of
options that are currently available because it would simply cost too
much to comply.
Clearly, the Food and Drug Administration's regulation does not
provide a workable framework for businesses. This rule should be about
ensuring customers are provided with accurate, trustworthy nutrition
information to help inform their decisions, all the while, enabling
small businesses the ability to comply.
Representative McMorris Rodgers' bill is carefully constructed to
create transparency for consumers, while maintaining the flexibility
necessary for all regulated businesses to be in compliance. The Common
Sense Nutrition Disclosure Act will establish a more reasonable
standard for Federal regulation by applying nutritional disclosure
requirements to establishments that derive more than 50 percent of
their total revenue from the sale of food.
The bill also ensures that inadvertent human error will not subject a
local franchise owner to crippling fines or possibly imprisonment.
Nutritional information could be provided by a remote access menu for
food establishments where the majority of orders are placed by
customers off premises. Establishments with self-serve food may comply
with the requirements for restaurants or place signs with nutritional
information adjacent to each food item, and the bill clarifies that
advertisements are not menus.
Yesterday, during the Rules Committee hearing, Ranking Member Pallone
testified that it is important that consumers have information at the
point of purchase. I disagree with this point. Consumers should have
the information when they are placing their order.
A menu board may work for some businesses where customers order at
the counter where they also pay; but for something like a pizza
restaurant where most people are ordering online or over the telephone,
having the calorie information when they pick up their order actually
won't be helpful to the consumer when they are actually making the
decisions. This is an example of how the Food and Drug Administration
did not consider the array of business types included in this rule, and
this is why a legislative solution not only is necessary, but it is
required.
The food retail sector employs millions of Americans, and it provides
access to affordable, healthy options. The Federal Government must not
impose arbitrary regulations that will cause unnecessary harm to
businesses and customers. The businesses impacted by this rule widely
support providing customers with the nutritional information to better
inform their food decisions, but they want to do it in a practical and
commonsense way.
{time} 1245
This legislation provides clear guidance to small business owners,
ensuring compliance and at the same time delivering that critical
information.
I encourage all of my colleagues to vote ``yes'' on the rule and vote
``yes'' on the underlying bill.
Mr. Speaker, I reserve the balance of my time.
Mr. POLIS. I thank the gentleman from Texas for yielding me the time,
and I yield myself such time as I may consume.
Mr. Speaker, I rise in opposition to the rule. This is one of the
strangest debates we have had in my time in the House here on the floor
of the House. We are actually literally debating the fine print of
menus in chain restaurants.
Frankly, I think the American people want to see this body address
the real issues that they care about every day. They want our body to
fix our broken immigration system and secure our borders. They want us
to raise the minimum wage and make college more affordable. They want
to make sure that Americans are safe and secure in their homes and that
we can ensure for the next generation of Americans the same promise
that our last generation has enjoyed in this country.
We know it is becoming even harder and harder for Americans to stay
and thrive in the middle class, burdened with more and more college
debt and with medical bills. It is time to improve that and make sure
that we can restore a robust economy that works for all Americans.
The finer points of exactly the font size on menus is, of course,
best left to the executive agencies. It is a complete waste of
Congress' time. There is a 400-page guidance from the FDA, and Congress
is now going into that through this bill and literally doing things
like adjusting font size and changing definitions. What a bizarre way
to spend not only an hour for this rule debate but time for the actual
bill debate, amendments, and the vote. I wonder how much taxpayer time
we are spending on menu font size, which I don't even know why we are
even talking about that. How bizarre.
The Common Sense Nutrition Disclosure Act is advertised as a response
to what some perceive to be FDA regulations they don't like. Fine.
Elect a different President. There actually will be a different
President. One of the things this bill ironically does is delays these
rules until there is a new President.
So, I don't know, will Members of this body like rules better that
are set by President Trump or President Sanders or President Clinton? I
don't even think the topics come up in their campaign on what font size
they want on menus and where they want the calories listed. I haven't
heard it from any of my constituents.
Generally, people want information about calories and how much they
are getting. They want to know that, if
[[Page H724]]
they are getting a hamburger, it might make a difference if the smaller
one is 300 calories and the bigger one is 500; maybe if I am watching
my weight, I will order the smaller one.
That is generally what people want. These rules generally do that.
But here we are using hundreds of thousands of taxpayer dollars
changing a few things and saying, by the way, we want President Trump
or Sanders to do this instead of President Obama.
I mean, why? The American people should be outraged. The American
people look at Congress, and what do we have, like I think a 6 percent
approval rating. Six percent of the American people are saying right
on? Six percent of the American people want us to discuss exactly where
it says how many calories your hamburger has at your fast-food
restaurant? Maybe those 6 percent checked the wrong box on that
congressional approval poll. But at least 94 percent of the American
people think we ought to be doing something else, and so do I.
I think we should be working to balance the budget. I think that we
should fix our broken immigration system and restore our borders. I
think that we should grow the American economy, find a sustainable way
to invest in infrastructure, find a way to provide a boost to the
renewable energies economy, boost American exports in manufacturing,
raise the minimum wage, make health care more affordable, and build
upon the improvements of the Affordable Care Act.
But no, no. The Republican majority has decided we are going to spend
the rest of the day today and tomorrow debating where and how on
menus--and not even all restaurants, just some restaurants, with
restaurants on all sides of this issue, by the way--that it says how
many calories are in your hamburger.
While some say that they don't like the regulations, the reality is
this bill actually delays and waters down the transparency that the
American people want. Honestly, my constituents have not called about
this. I don't think many of them care that much about where it says how
many calories are in their burger. But to the extent they think about
it, they just want transparency. They want to see it. So do I as a
consumer, by the way.
When we work late nights here in D.C., I will order online from a
delivery service. They will bring the food to my home. Sometimes I will
go into their storefront, and sometimes those stores are chain stores
that are under this.
Now, as a consumer, I like to see the calories at all those
locations. What this bill would actually do is prevent that from
happening. It would say, look, Mr. Store Owner or Ms. Store Owner of a
Restaurant Franchise Chain That Delivers, you get 60 percent of your
business at your door that comes in, 40 percent of your business is
delivery, so you don't have to tell your delivery customers on your Web
site how many calories are in that burger. If I am one of their
delivery customers, I lose out on that transparency because of the
measures in this bill.
And the converse, what if 60 percent of their food is delivery food
and 40 percent are walk-in customers? Now you are saying that if I
choose to go there, walk-in customers, sure, maybe the calorie thing is
somewhere, maybe it is tucked under a magazine dispenser or it is on
some back wall in the restroom, but it is not right there on the menu
where I can actually see how many calories are in the item of my
choice.
The American people like our labeling. They like transparency. You go
to the supermarket, every item, you pick it up, there is a label that
tells you the calories, and it tells you the ingredients. People like
that for restaurants. They certainly don't like Congress trying to
modify the fine print on the font size on 400 pages of thoughtful rules
around exactly how this should be done and punting it to the next
President, whom we don't even know who that is going to be, to start a
whole new rulemaking process about something that is very simple.
People want to see how many calories are in what they eat. It is a
very simple concept--very simple. People like it. People don't want us
wasting time on it. Let's not waste time on it. Let's discuss the
things people care about.
But, no, we are forced to, under this rule, spend even more time--and
time is money. Time is money, not just of opportunity cost, but we
could be talking about ending our budget deficit and restoring order to
our border. We could be doing that. Not just the opportunity cost but
actual cost. It costs money to keep this body up and running. We are
paying our staffs, the lights are on, hundreds of thousands of dollars
of taxpayer money to discuss exactly where and how the number of
calories on your hamburger will be listed when there already are over
400 pages of rules which work and are still being fine tuned.
We had great testimony from the ranking member on the Energy and
Commerce Committee, Frank Pallone, yesterday in our Rules Committee. He
said that there are ongoing discussions with FDA, and they are well
aware of some of these issues that can be improved.
Congress is best setting these broad directions, like the broad
direction which I support which Congress actually did. This was part of
the Affordable Care Act. If it were a separate vote, I would have been
proud to support it too. We said chain restaurants need to label
caloric intake. That is great. That is a broad direction. The details
of exactly how to do it need to be figured out on the implementation
side.
I can only imagine, if Congress got this involved with every single
thing, this country would grind to a halt. Nothing could ever occur. No
permit would ever be granted. No approval would ever occur of anything.
It is simply the wrong way to run the largest, wealthiest, most
democratic, and most free nation on the face of the Earth by grinding
the country to a halt over Congress--the Congress of the United
States--setting font sizes on restaurant menus. What the heck are we
doing? It is a wonder that 6 percent of people, Mr. Speaker, approve of
this Congress. I think they checked the wrong box.
The whole point of this labeling measure included in the Affordable
Care Act was to empower consumers to make healthier decisions about the
food they eat by simply allowing them to know what is in it. That is
the broad direction set by Congress, making sure that we have a public
health impact. We need a certain level of standardization so consumers
can compare nutritional information on restaurants, just as we do on
packages in stores.
If companies that make packaged foods had free rein to invent serving
sizes on nutrition labels, or to put the labels on the inside of the
container instead of the outside where you can't really see it, would
anybody in this body argue that those labels were no longer serving the
public good for which they were introduced?
This is the same thing. This is the same thing as putting a label on
the inside of a jar, rather than the outside, to game the system. It
seems to me like an effort to deprive the American people of
information they want to see. You don't improve Federal standards by
making them unenforceable in a court of law. You make them irrelevant
by making them unenforceable in a court of law.
Mr. Speaker, I am one of these people who wants to know what is in
their food. Many of my constituents are too. I am proud to represent
the Second Congressional District of Colorado, one of the fittest
congressional districts in this Nation, one of the districts with the
lowest obesity rates, and a district in which people pride themselves
on nutrition, healthy lifestyles, and exercise. I am proud to be a
representative of that district. My constituents want to know what they
eat. Menu labeling, which has been implemented in five States and
dozens of cities since 2006, empowers consumers to make healthy
decisions and know what they eat, which has never been more important.
We all know that obesity and diabetes are on the rise. Last year,
almost half of American adults had diabetes or pre-diabetes. Medical
costs are in the hundreds of billions to treat these diseases and
growing. Eating well is the most significant thing that a person can do
as a preventative health measure to prevent themselves from developing
these diet-related illnesses, including obesity and heart disease.
As it stands now, nutrition information is already available on
prepackaged foods. So when I cook at home, I know exactly what
ingredients
[[Page H725]]
are going into the meal I feed myself and my kids. It is right on the
label. But when I go out to eat, I don't have the advantage of that
same information.
In 2015, for the first time ever, Americans spent more money at
restaurants than on groceries. Let me say that again: Americans spent
more money at restaurants than on groceries for the first time in 2015.
That is a big deal. An important part of the nutritional content that
gives us sustenance comes from restaurants, and the American people
want that same level of transparency at their restaurants.
With this particular bill, Congress would be moving away from the
broad direction that it gave the FDA to basically micromanage over 400
pages of exactly, in what instances, where, and how labels need to
appear to the detriment of transparency and access.
As my friend from New Jersey (Mr. Pallone) mentioned in the Rules
Committee, the FDA solicited significant feedback from stakeholders
over many years, both during the negotiations of the Affordable Care
Act and, of course, over the course of developing a final rule. They
have delayed implementation for 2 years already to give restaurants and
the retail food community more time. I am talking about printing
things. How overly generous can you get?
With this bill, the Republicans are seeking 2 more years of delay. It
is important to point out it has already been delayed 2 years. Again,
this is a typical example of why the American people are so frustrated
with Congress. This is a bill that will effectively grind things to a
halt. Grind what to a halt? Telling you how many calories are in your
hamburger, something that people want to know. That is what it will
grind to a halt. To what end? To no end. It is a bizarre, unusual waste
of time for Congress to be even debating this.
If this bill were to pass and be signed into law--which it won't be
because, of course, the President does not support this bill--it would
postpone regulations for another 2 years, leaving an entirely new
structure about exactly how the caloric intake on your menus is
portrayed to the next President of the United States. Let's get this
done.
Under this bill, the menu labeling provision would go into effect, at
the earliest, in 2018 and would be significantly watered down. Why is
Congress sticking our noses in over 400 pages of rulemaking regarding
this issue? If we have issues with the FDA, bring them up appropriately
in oversight hearings of the FDA. At most, legislatively, perhaps a
funding restriction amendment in an appropriations process to run a
particular aspect of this regulation that a majority of this body
doesn't like might be a legislative way to spend 10 minutes on it and
resolve it. Ten minutes. Maybe the American people would think it
reasonable to spend 10 minutes.
They don't think it is reasonable to discuss this for 2 days.
Hamburger calories for 2 days and exactly what font size and where it
appears? What is going on here, Mr. Speaker? This is simply an
inappropriate way, a shockingly out-of-touch way, for Congress to spend
its time.
My colleagues who support this bill have said that it builds
flexibility for compliance. They say that it can help clarify nutrition
information. I don't agree with those remarks, but I am more concerned
with the provision of micromanaging the way that bills this Congress
have already passed are implemented.
I am worried this bill would make the provision of nutrition
information more confusing for several reasons. In fact, I think that
is part of the nefarious goal of this bill.
Where are caloric counts supposed to be displayed? This bill would
allow the restaurant or retail establishment to publish this
information on one menu board, and not necessarily at the point of
sale. So instead of on the menu at the point of sale, they can stick it
in the bathroom. They can stick it in the bathroom. If you don't go to
the bathroom, you won't see how many calories are in your burger. That
is what they could do under this rule. Who the heck wants that?
As Mr. Pallone pointed out yesterday, H.R. 2017 allows retailers to
publish nutrition information in the format that receives the majority
of their customers, whether it was in person or online.
{time} 1300
Just because I order food delivered to my home, I might not get to
know how many calories are in my family's dinner. Or conversely, if
other people order delivery and I go into a restaurant, I might not get
to know how many calories are in a meal that I am feeding my family.
I don't see why we don't just publish the information in the store,
on takeout menus, and online. They have it, they know it, print it. It
is easy. Do it. People want to see it. It is transparency. It is like
letting prepackaged goods put their label on the inside of the package
where nobody can see it rather than the outside. Or people buy things,
if you buy your packaged goods online--and some people do--saying: Oh,
it is on the Web site, so it doesn't need to be on the label. If you go
in the store, you don't get to know what is in this product.
The businesses that are required to implement these regulations
aren't even corner delis or mom and pop shops. This isn't about them.
This is about restaurants with more than 20 locations. The FDA has
exempted any business smaller than that.
In fact, the rulemaking has many exceptions already, including
exemptions for specialty items, for temporary menus, for custom orders,
and for daily specials. All exempt. They had a thoughtful process. They
talked to restaurant owners. I haven't heard any complaints from my
district about it, and people generally support the overall direction
of transparency.
I am especially concerned with how this bill would eliminate
mechanisms for enforcement by removing a provision requiring businesses
to provide documentation of compliance. It means that it would be
essentially impossible for businesses to be accountable for whether
they are even complying with regulations. It would make these
regulations in paper only, in name only. There would be no meaningful
enforcement mechanism. If this bill were to become law, which it won't,
it would effectively gut those transparency requirements.
The bill also prohibits civil lawsuits against businesses that
attempt to deceive customers or circumvent the labeling process. If
companies are willingly lying about what is in their products, in the
calories and the nutritional content, of course, they should be liable
for that--of course.
Should a company intentionally mislead with confusing labels,
customers need a way to fight back. Instead, this bill calls for
complete indemnity, and makes any labeling initiative meaningless
because there is simply no reason to comply.
This bill allows restaurants to essentially invent their own
nutritional information by using deceptive serving sizes and hide that
information in bathrooms or on walls where consumers won't even see it,
and not put it online or only put it online and not at the restaurant.
At the same time, if somehow customers are able to discern that an
establishment is lying, it strips away the enforcement mechanism and
civil liability from that.
What a colossal waste of time for the United States Congress to
descend to the level of whether calories should be displayed in
bathrooms, or on walls, or on menus in restaurants with more than 20
chains, when this Nation is in crisis and needs a responsible Congress
to balance the budget and needs a responsible Congress to secure our
borders and replace our broken immigration system with one that works.
It needs a responsible Congress to ensure the safety and security of
the American people, it needs a responsible Congress to find a
sustainable way to invest in infrastructure and growth, and it does not
need a Congress to micromanage the font size of menus.
I reserve the balance of my time.
Mr. BURGESS. Mr. Speaker, I yield 2 minutes to the gentleman from
Georgia (Mr. Carter), a member of the Education and the Workforce
Committee.
Mr. CARTER of Georgia. Mr. Speaker, I thank the gentleman from Texas
for yielding.
Mr. Speaker, this is just another example of excessive burdens placed
on small businesses from Federal regulations.
[[Page H726]]
The proposed menu labeling requirements by the FDA, which come from a
provision of ObamaCare, will require restaurants, grocery stores, gas
stations, and even movie theaters and miniature golf courses to list
the number of calories in food and drinks they sell.
Thousands of small businesses will have to absorb the cost of
providing new menu displays and calorie information. As a former small
business owner, I can tell you this is money small businesses cannot
afford.
Ultimately, the group that will pay the price for these new
regulations is the American consumer through increased food and drink
costs at their local restaurants and grocery stores.
Several large chain stores have welcomed these new regulations. I
wonder why. They know that their small business competitors can't
afford to purchase new menus and signs, placing them at a disadvantage
to the larger chain companies.
I find it ironic that this administration that champions itself a
small business advocate, continues to place additional burdens on small
businesses at the advantage of larger corporations.
H.R. 2017, the Common Sense Nutrition Disclosure Act of 2015 remedies
this glaring conflict and removes the unnecessary and expensive red
tape so small business owners can continue to compete and grow our
economy.
I encourage my colleagues to support small businesses by supporting
this legislation.
Mr. POLIS. Mr. Speaker, I yield myself 3 minutes.
First of all, none of what we are even talking about applies to small
businesses.
I have friends that own restaurants in Colorado in Boulder and Fort
Collins. I have a friend that has three restaurants and another one has
one restaurant. I actually used to own a part of a restaurant. I don't
recommend that business to anybody. It is a tough business. This bill
doesn't apply to any of those people. We are talking about businesses
with over 20 restaurants. We are talking about the big guys.
I think that is why, for instance, the National Restaurant
Association isn't even in favor of this bill. They represent many of
the restaurants that feel that this is a step forward. They want their
customers to know what is in their food because, guess what, when you
know what is in your food, you are more likely to dine out.
The fact that restaurants have surpassed grocery stores for meals
just shows the importance of restaurants to the American people. People
want to know what is in their food. This bill would impede that. It is
Congress micromanaging the fine print of a thoroughly vetted and
negotiated rulemaking process that has already been delayed 2 years--it
is Congress delaying it another 2 years--saying somehow this issue of
exactly where in restaurants it displays the calories is so important
that President Obama can't be trusted with it, we have to trust
President Trump or President Clinton or President Sanders. That is what
this body is effectively saying. It is a colossal waste of this body's
time. It is time for Congress to focus on issues that matter to the
American people.
That is what I hear about. I think it is what my colleagues hear
about when we have townhalls when we are out and about in our
districts. I haven't heard a single constituent--we are not even
talking one--who said that they want the number of calories on the menu
items to be harder to see or posted in less places at restaurants--
zero. I have heard from literally zero constituents that they want
this.
I have heard from several that they like knowing what is in their
food. I think that most constituents--who I haven't heard from at all
on this issue--are just utterly dismayed that Congress is spending a
day and a half even debating this. How bizarre this is when there are
real life bread and butter issues that they face--putting food on their
table, paying their rent, paying their college loans, replacing their
car that burnt out, making sure they don't lose their job, and having
to work a second job to make ends meet and make their mortgage. That is
what people are facing out there.
The fact that what this Congress is debating is so far removed from
that dinner table talk at a family's house is why this Congress has
such a dismal approval rating, which will continue to get worse as long
as we debate these kinds of bills.
I reserve the balance of my time.
Mr. BURGESS. Mr. Speaker, I yield 2 minutes to the gentleman from
Georgia (Mr. Allen), a valuable member of the House Agriculture
Committee.
Mr. ALLEN. Mr. Speaker, I thank the chairman, and I appreciate this
time.
Yes, this country does have major problems, and certainly regulation
is one of them. In fact, I just spent over an hour and a half of my
time talking with the administrator of the EPA about the economic
impact of that agency.
This is just another example of this government reaching out to
require businesses to do things that, frankly, cost money and cost the
economy. Every American deserves the opportunity at a good job, and we
must grow this economy. That is why I am speaking today in support of
H.R. 2017, the Common Sense Nutrition Disclosure Act.
This bill protects American small businesses from unnecessary costs
and regulations, which, again, is the big problem we have with growing
the economy. Mainly those in the restaurant and food industries are
affected by this, establishing one-size-fits-all nutritional disclosure
requirements.
As a small business owner for over 40 years, I know just how daunting
new regulations are. New regulations mean more money spent and
countless hours of compliance.
It is estimated that if this regulation is implemented, it could cost
American businesses $1 billion to comply and 500,000 hours of paper.
This is a serious issue. American small businesses do not have that
kind of time, nor do they have that kind of money.
During a time of slow economic growth, we should not make it harder
for Americans to start and stay in business. As we have seen in just
about every industry, one-size-fits-all approaches do not work.
I am proud to cosponsor this bill, and encourage my colleagues to
join me in supporting H.R. 2017. This bill is common sense. It is in
the name.
Mr. POLIS. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, instead of trying to water down transparency and
preventive health measures, we should be focusing on what we can
actively do to make this country healthier, happier, and safer, like
investing in child nutrition, an issue that has broad bipartisan
support. In fact, just a couple of weeks ago, the Senate Agriculture
Committee passed a bipartisan rewrite of the Child Nutrition Act, and
there is widespread support for reauthorizing key child nutrition
policies, like the Summer Food Service Program, which really helps some
of our most at-risk families ensure that kids are at school ready to
learn because they have had their nutritional needs met.
By some estimates, as few as 18 percent of students who are eligible
for free and reduced lunch during the school year also receive a summer
meal. We can do better. The time of year should never dictate whether
or not a child goes hungry in this country.
A bipartisan group of Senators agree, and they have offered an
innovative solution to the issue in the bipartisan Child Nutrition
Reauthorization Act. The House and our Education and the Workforce
Committee should focus on issues like summer meals, which actually make
a difference for families, rather than trying to prevent calorie
information from being displayed large enough or in the right place
where people can actually see it. God forbid.
We also should be focusing on policies like the Farm to School
Program, which provide support for our local farmers and at the same
time give kids the healthy meals that they need.
Educating our next generation about eating well while simultaneously
introducing them to the values of farmers and growing food in our
culture and on our land is a double win.
It would be great if Congress could roll up our sleeves and get to
work on issues that the American people care about, rather than
debating how to hide calorie information from consumers. We should be
discussing how to make better nutritional information available to more
people, how to feed
[[Page H727]]
more kids that go hungry, how to improve our public health, and, of
course, the big issues that we actually hear about, securing our
borders, making sure the American people are safe and secure, investing
in infrastructure, and growing our economy. That is what this body
should be focused on.
I was told by my staff person that zero constituents of mine have
called or written in asking me to support this bill. Three have written
in opposed to this bill. The rest of them--792,000 of them--don't think
we should be debating this bill. They haven't opined on it, and they
continue to grow disillusioned with a Congress that is debating for a
day and a half how to best hide nutritional information from them
rather than improve the quality of schools, make college more
affordable, make sure that they can afford their mortgage, and do
something about the fact that it is getting harder and harder to get by
in our country every day.
Mr. Speaker, national standards are important. They create something
that consumers can recognize and can understand. Nutritional labeling
standards on menus promote consistency and increased transparency.
Standards make compliance easier and less costly. By engaging
stakeholders in dialogue, the FDA has tried to accommodate retailers
that will be affected by this bill, and worked to put this feedback
into the final bill.
{time} 1315
Sadly, Members of this body have responded, instead, by preemptively
introducing legislation that would not only weaken the guidelines but
would delay them for 2 additional years on top of the 2 years that they
have already been delayed. This bill would create more confusion than
it addresses. It undermines the effectiveness of the regulation by
limiting a consumer's recourse for action in civil court, and it does
not make consumers and the American people any healthier.
For all of these reasons and more, prominent healthcare groups across
the spectrum oppose this legislation, including the American Cancer
Society, the American Heart Association, the Association of State
Public Health Nutritionists, the American Public Health Association,
the National Physicians Alliance, the Public Health Institute, doctors,
and public health advocates.
I urge my colleagues to oppose H.R. 2017 as well. Menu labeling
provides the necessary information to make healthy choices when eating
out. Easy access to accurate information about the foods we eat serves
our Nation's public health.
By rejecting this rule, Congress will be sending the message to the
rank and file on both sides of the aisle, who, hopefully, will join me
in opposing this rule and in bringing this down, that Congress should
have priorities that the American people have in that we need to get
Congress to work on dealing with the bread-and-butter issues that
concern American families every day of the week, every hour of the day.
Mr. Speaker, if we defeat the previous question, I will offer an
amendment to the rule to bring up a bill to help prevent mass shootings
by promoting research into the causes of gun violence, making it easier
to identify and treat those most prone to committing heinous acts.
Mr. Speaker, I ask unanimous consent to insert the text of my
amendment in the Record, along with extraneous material, immediately
prior to the vote on the previous question.
The SPEAKER pro tempore (Mr. Paulsen). Is there objection to the
request of the gentleman from Colorado?
There was no objection.
Mr. POLIS. Mr. Speaker, I urge my colleagues to bring down this rule
and restore the faith of the American people and this institution and
defeat the previous question. Vote ``no'' on the rule.
I yield back the balance of my time.
Mr. BURGESS. Mr. Speaker, I yield myself the balance of my time.
The simple truth is the faith of the American people does not hinge
upon the fact that we will jail a chef for an inadvertent mistake made
at a pizza restaurant.
Let me take just a few minutes to recap some of the history of the
Affordable Care Act and, perhaps, a lesson in civics at the same time.
I am just a simple country doctor. My understanding of how a bill
became law was, perhaps, relegated to the video ``Schoolhouse Rock!''
that I saw many years ago as a child with how a bill becomes law: You
are just a bill on Capitol Hill. You go to committee. You get out of
committee. You come to the floor. You go to the Senate. You go to a
conference committee. You come back. You get voted on, and you are on
your way. But, as Paul Harvey said, then there is ``the rest of the
story.''
So let's examine the process for a moment.
We have the Affordable Care Act. Here is a bill that was sort of
bumped around on Capitol Hill for a little over a year's time. Finally,
it did get passed into law. We had a section in the Affordable Care
Act, section 4205. Now, Mr. Speaker, I do not recall which special
interest wanted section 4205 placed into the Affordable Care Act. I
feel fairly certain that there was a special interest that did want
this language in the bill, because the entirety of the Affordable Care
Act was, essentially, written by one special interest or another. Yet
here is a section that was in the Affordable Care Act, that was duly
voted on by the House and the Senate, and that passed in March of 2010.
I voted ``no''--let me be very clear on that--as did every Republican
who was in the House of Representatives at the time.
Section 4205 is not a terribly long section, and it is not terribly
difficult to read. Section 4205 goes on for, perhaps, four pages, and
it talks about nutritional labeling. Nutritional labeling, in and of
itself, is not a bad thing; but because of the way the law is written,
after its passage, it was then handed off to a Federal agency--a
Federal agency that is composed not of elected Members of Congress, not
of anyone who is directly accountable to any single American
constituent anywhere, but the Federal agency sits down and goes about
the work of interpreting what Congress intended when it passed the law
and how we are going to make this work in and amongst all of the other
Federal rulings and regulations that are out there.
The Food and Drug Administration sat down to go about the task of
writing the rules and regulations that would govern this one section of
the Affordable Care Act--this four-page section in the Affordable Care
Act. They, indeed, published their work in the Federal Register on
Monday, December 1, 2014. Since we are talking about font size anyway,
it is 100 pages of very small font writing, three columns per page; so
there is a lot of stuff here--it is pretty dense.
You have heard me mention that I am concerned about the fact that a
hidden, inadvertent addition of a single slice of pepperoni on a pizza
could send someone to jail for a year. That, actually, is not covered
in the remarks in the Federal Register; so let me save people some time
if they want to read about where the penalties arise. The penalties
arise because, as a consequence of the language in the Federal
Register, a law known as the Federal Food, Drug, and Cosmetic Act, is
amended as a result of this work.
The Federal Food, Drug, and Cosmetic Act, section 403, reads:
A food shall be deemed to be misbranded if its labeling is
false or misleading in any particular.
That is pretty broad.
Now, if the food is misbranded, that then invokes a second part under
the ``prohibited acts'' in the Federal Food, Drug, and Cosmetic Act.
Under section 331:
The following acts and the causing thereof are prohibitive:
the introduction or delivery for introduction into interstate
commerce of any food, drug, device, tobacco product, or
cosmetic that is adulterated or misbranded.
We go back to the word ``misbranded.''
A food shall be deemed to be misbranded if its labeling is
false or misleading in any particular.
Now we come to a food that has been misbranded and the penalty for
such an act when we get to the section of the Federal Food, Drug, and
Cosmetic Act, section 303, under Penalties:
(a) Violation of section 331 of this title:
Any person who violates a provision of section 331 of this
title shall be imprisoned for not more than 1 year or fined
not more than $1,000 or both.
Therein, Mr. Speaker, is the problem with the Affordable Care Act, as
written and then interpreted and as it applies to existing law in the
United States Code.
[[Page H728]]
I would think that menu labeling, as a matter of course, is a
marketing aspect. If you know that your restaurant is putting out food
labeling that is accurate and upon which you can depend, great, as I
may be more likely to go to such a facility; but, there, it is a
voluntary choice. It goes from voluntary to compulsory under the
language of the Affordable Care Act. Therein is the problem. That is
the problem that Representative McMorris Rodgers sought to correct of
the inadvertent addition of a single food item in food that is prepared
in a restaurant that has more than 20 facilities.
Think of a name brand pizza place. You may have a local franchise in
your town. If you go there on a Friday night and if the calorie count
is not identical to what has been posted on the menu board and someone
checks, that chef could be imprisoned for a year. That is the reason
that, indeed, constituents have written and that restaurant owners have
written. They asked Mrs. McMorris Rodgers, and she responded to their
requests, and that is why we have a bill in front of us today.
The rule that is under consideration right now provides for the
consideration of an important fix to a harmfully crafted law and to a
poorly written regulation.
I applaud my fellow Energy and Commerce Committee member Cathy
McMorris Rodgers for her work and for doing all she could to bring all
stakeholders together to craft a workable compromise.
Mr. Speaker, I urge my colleagues to vote ``yes'' on the rule and
``yes'' on the underlying bill.
The material previously referred to by Mr. Polis is as follows:
An Amendment to H. Res. 611 Offered by Mr. Polis of Colorado
At the end of the resolution, add the following new
sections:
Sec. 5. Immediately upon adoption of this resolution the
Speaker shall, pursuant to clause 2(b) of rule XVIII, declare
the House resolved into the Committee of the Whole House on
the state of the Union for consideration of the bill (H.R.
3926) to amend the Public Health Service Act to provide for
better understanding of the epidemic of gun violence, and for
other purposes. The first reading of the bill shall be
dispensed with. All points of order against consideration of
the bill are waived. General debate shall be confined to the
bill and shall not exceed one hour equally divided and
controlled by the chair and ranking minority member of the
Committee on Energy and Commerce. After general debate the
bill shall be considered for amendment under the five-minute
rule. All points of order against provisions in the bill are
waived. At the conclusion of consideration of the bill for
amendment the Committee shall rise and report the bill to the
House with such amendments as may have been adopted. The
previous question shall be considered as ordered on the bill
and amendments thereto to final passage without intervening
motion except one motion to recommit with or without
instructions. If the Committee of the Whole rises and reports
that it has come to no resolution on the bill, then on the
next legislative day the House shall, immediately after the
third daily order of business under clause 1 of rule XIV,
resolve into the Committee of the Whole for further
consideration of the bill.
Sec. 6. Clause 1(c) of rule XIX shall not apply to the
consideration of H.R. 3926.
____
The Vote on the Previous Question: What It Really Means
This vote, the vote on whether to order the previous
question on a special rule, is not merely a procedural vote.
A vote against ordering the previous question is a vote
against the Republican majority agenda and a vote to allow
the Democratic minority to offer an alternative plan. It is a
vote about what the House should be debating.
Mr. Clarence Cannon's Precedents of the House of
Representatives (VI, 308-311), describes the vote on the
previous question on the rule as ``a motion to direct or
control the consideration of the subject before the House
being made by the Member in charge.'' To defeat the previous
question is to give the opposition a chance to decide the
subject before the House. Cannon cites the Speaker's ruling
of January 13, 1920, to the effect that ``the refusal of the
House to sustain the demand for the previous question passes
the control of the resolution to the opposition'' in order to
offer an amendment. On March 15, 1909, a member of the
majority party offered a rule resolution. The House defeated
the previous question and a member of the opposition rose to
a parliamentary inquiry, asking who was entitled to
recognition. Speaker Joseph G. Cannon (R-Illinois) said:
``The previous question having been refused, the gentleman
from New York, Mr. Fitzgerald, who had asked the gentleman to
yield to him for an amendment, is entitled to the first
recognition.''
The Republican majority may say ``the vote on the previous
question is simply a vote on whether to proceed to an
immediate vote on adopting the resolution . . . [and] has no
substantive legislative or policy implications whatsoever.''
But that is not what they have always said. Listen to the
Republican Leadership Manual on the Legislative Process in
the United States House of Representatives, (6th edition,
page 135). Here's how the Republicans describe the previous
question vote in their own manual: ``Although it is generally
not possible to amend the rule because the majority Member
controlling the time will not yield for the purpose of
offering an amendment, the same result may be achieved by
voting down the previous question on the rule. . . . When the
motion for the previous question is defeated, control of the
time passes to the Member who led the opposition to ordering
the previous question. That Member, because he then controls
the time, may offer an amendment to the rule, or yield for
the purpose of amendment.''
In Deschler's Procedure in the U.S. House of
Representatives, the subchapter titled ``Amending Special
Rules'' states: ``a refusal to order the previous question on
such a rule [a special rule reported from the Committee on
Rules] opens the resolution to amendment and further
debate.'' (Chapter 21, section 21.2) Section 21.3 continues:
``Upon rejection of the motion for the previous question on a
resolution reported from the Committee on Rules, control
shifts to the Member leading the opposition to the previous
question, who may offer a proper amendment or motion and who
controls the time for debate thereon.''
Clearly, the vote on the previous question on a rule does
have substantive policy implications. It is one of the only
available tools for those who oppose the Republican
majority's agenda and allows those with alternative views the
opportunity to offer an alternative plan.
Mr. BURGESS. I yield back the balance of my time, and I move the
previous question on the resolution.
The SPEAKER pro tempore. The question is on ordering the previous
question.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. POLIS. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further
proceedings on this question will be postponed.
____________________