[Congressional Record Volume 164, Number 23 (Tuesday, February 6, 2018)]
[House]
[Pages H815-H821]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             COMMON SENSE NUTRITION DISCLOSURE ACT OF 2017

  Mr. UPTON. Mr. Speaker, pursuant to House Resolution 725, I call up 
the bill (H.R. 772) 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, and ask for its immediate 
consideration in the House.
  The Clerk read the title of the bill.
  The SPEAKER pro tempore. Pursuant to House Resolution 725, the 
amendment in the nature of a substitute recommended by the Committee on 
Energy and Commerce, printed in the bill, is adopted, and the bill, as 
amended, is considered read.
  The text of the bill, as amended, is as follows:

                                H.R. 772

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Common Sense Nutrition 
     Disclosure Act of 2017''.

     SEC. 2. AMENDING CERTAIN DISCLOSURE REQUIREMENTS FOR 
                   RESTAURANTS AND SIMILAR RETAIL FOOD 
                   ESTABLISHMENTS.

       (a) In General.--Section 403(q)(5)(H) of the Federal Food, 
     Drug, and Cosmetic Act (21 U.S.C. 343(q)(5)(H)) is amended--
       (1) in subclause (ii)--
       (A) in item (I)(aa), by striking ``the number of calories 
     contained in the standard menu item, as usually prepared and 
     offered for sale'' and inserting ``the number of calories 
     contained in the whole standard menu item, or the number of 
     servings (as reasonably determined by the restaurant or 
     similar retail food establishment) and number of calories per 
     serving, or the number of calories per the common unit 
     division of the standard menu item, such as for a 
     multiserving item that is typically divided before 
     presentation to the consumer'';
       (B) in item (II)(aa), by striking ``the number of calories 
     contained in the standard menu item, as usually prepared and 
     offered for sale'' and inserting ``the number of calories 
     contained in the whole standard menu item, or the number of 
     servings (as reasonably determined by the restaurant or 
     similar retail food establishment) and number of calories per 
     serving, or the number of calories per the common unit 
     division of the standard menu item, such as for a 
     multiserving item that is typically divided before 
     presentation to the consumer''; and
       (C) by adding at the end the following flush text:
     ``In the case of restaurants or similar retail food 
     establishments where the majority of orders are placed by 
     customers who are off-premises at the time such order is 
     placed, the information required to be disclosed under items 
     (I) through (IV) may be provided by a remote-access menu 
     (such as a menu available on the internet) as the sole method 
     of disclosure instead of on-premises writings.'';
       (2) in subclause (iii)--
       (A) by inserting ``either'' after ``a restaurant or similar 
     retail food establishment shall''; and
       (B) by inserting ``or comply with subclause (ii)'' after 
     ``per serving'';
       (3) in subclause (iv)--
       (A) by striking ``For the purposes of this clause'' and 
     inserting the following:
       ``(I) In general.--For the purposes of this clause'';
       (B) by striking ``and other reasonable means'' and 
     inserting ``or other reasonable means''; and
       (C) by adding at the end the following:
       ``(II) Permissible variation.--If the restaurant or similar 
     food establishment uses such means as the basis for its 
     nutrient content disclosures, such disclosures shall be 
     treated as having a reasonable basis even if such disclosures 
     vary from actual nutrient content, including but not limited 
     to variations in serving size, inadvertent human error in 
     formulation or preparation of menu items, variations in 
     ingredients, or other reasonable variations.'';
       (4) by amending subclause (v) to read as follows:
       ``(v) Menu variability and combination meals.--The 
     Secretary shall establish by regulation standards for 
     determining and disclosing the nutrient content for standard 
     menu items that come in different flavors, varieties, or 
     combinations, but which are listed as a single menu item, 
     such as soft drinks, ice cream, pizza, doughnuts, or 
     children's combination meals. Such standards shall allow a 
     restaurant or similar retail food establishment to choose 
     whether to determine and disclose such content for the whole 
     standard menu item, for a serving or common unit division 
     thereof, or for a serving or common unit division thereof 
     accompanied by the number of servings or common unit 
     divisions in the whole standard menu item. Such standards 
     shall allow a restaurant or similar retail food establishment 
     to determine and disclose such content by using any of the 
     following methods: ranges, averages, individual labeling of 
     flavors or components, or labeling of one preset standard 
     build. In addition to such methods, the Secretary may allow 
     the use of other methods, to be determined by the Secretary, 
     for which there is a reasonable basis (as such term is 
     defined in subclause (iv)(II)).'';
       (5) in subclause (x)--
       (A) by striking ``Not later than 1 year after the date of 
     enactment of this clause, the Secretary shall promulgate 
     proposed regulations to carry out this clause.'' and 
     inserting ``Not later than 1 year after the date of enactment 
     of the Common Sense Nutrition Disclosure Act of 2017, the 
     Secretary shall issue proposed regulations to carry out this 
     clause, as amended by such Act. Final regulations to carry 
     out this clause, including any regulations promulgated before 
     the date of enactment of the Common Sense Nutrition 
     Disclosure Act of 2017, shall not take effect until such 
     compliance date as shall be specified by the Secretary in the 
     regulations promulgated pursuant to the Common Sense 
     Nutrition Disclosure Act of 2017.''; and
       (B) by adding at the end the following:
       ``(IV) Certifications.--Restaurants and similar retail food 
     establishments shall not be required to provide 
     certifications or similar signed statements relating to 
     compliance with the requirements of this clause.'';
       (6) by amending subclause (xi) to read as follows:
       ``(xi) Definitions.--In this clause:
       ``(I) Menu; menu board.--The term `menu' or `menu board' 
     means the one listing of items which the restaurant or 
     similar retail food establishment reasonably believes to be, 
     and designates as, the primary listing from which customers 
     make a selection in placing an order. The ability to order 
     from an advertisement, coupon, flyer, window display, 
     packaging, social media, or other similar writing does not 
     make the writing a menu or menu board.
       ``(II) Preset standard build.--The term `preset standard 
     build' means the finished version of a menu item most 
     commonly ordered by consumers.
       ``(III) Standard menu item.--The term `standard menu item' 
     means a food item of the type described in subclause (i) or 
     (ii) of subparagraph (5)(A) with the same recipe prepared in 
     substantially the same way with substantially the same food 
     components that--
       ``(aa) is routinely included on a menu or menu board or 
     routinely offered as a self-service food or food on display 
     at 20 or more locations doing business under the same name; 
     and
       ``(bb) is not a food referenced in subclause (vii).''; and
       (7) by adding at the end the following:
       ``(xii) Opportunity to correct violations.--Any restaurant 
     or similar retail food establishment that the Secretary 
     determines is in violation of this clause shall have 90 days 
     after receiving notification of the violation to correct the 
     violation. The Secretary shall take no enforcement action, 
     including the issuance of any public letter, for violations 
     that are corrected within such 90-day period.''.
       (b) National Uniformity.--Section 403A(b) of the Federal 
     Food, Drug, and Cosmetic Act (21 U.S.C. 343-1(b)) is amended 
     by striking ``may exempt from subsection (a)'' and inserting 
     ``may exempt from subsection (a) (other than subsection 
     (a)(4))''.

     SEC. 3. LIMITATION ON LIABILITY FOR DAMAGES ARISING FROM 
                   NONCOMPLIANCE WITH NUTRITION LABELING 
                   REQUIREMENTS.

       Section 403(q)(5)(H) of the Federal Food, Drug, and 
     Cosmetic Act (21 U.S.C. 343(q)(5)(H)), as amended by section 
     2, is further amended by adding at the end the following:
       ``(xiii) Limitation on liability.--A restaurant or similar 
     retail food establishment shall not be liable in any civil 
     action in Federal or State court (other than an action 
     brought by the United States or a State) for any claims 
     arising out of an alleged violation of--
       ``(I) this clause; or
       ``(II) any State law permitted under section 403A(a)(4).''.

  The SPEAKER pro tempore. The bill shall be debatable for 1 hour 
equally divided and controlled by the chair and

[[Page H816]]

ranking minority member of the Committee on Energy and Commerce.
  The gentleman from Michigan (Mr. Upton) and the gentlewoman from 
Illinois (Ms. Schakowsky) each will control 30 minutes.
  The Chair recognizes the gentleman from Michigan.


                             General Leave

  Mr. UPTON. Mr. Speaker, I ask unanimous consent that all Members have 
5 legislative days within which to revise and extend their remarks and 
insert extraneous material on H.R. 772.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Michigan?
  There was no objection.
  Mr. UPTON. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, this bill, H.R. 772, is a bipartisan piece of 
legislation introduced by Representatives Cathy McMorris Rodgers and 
Tony Cardenas to amend the Food and Drug Administration's menu labeling 
rule that was issued in November of 2014.
  The goal of the bill was to make implementation of the nutrition 
disclosure law useful for consumers and workable for food service 
establishments. The existing regulatory framework, which has not yet 
been implemented, is not only cumbersome for the food industry, but it 
also impedes businesses' ability to provide meaningful information that 
customers can use to make nutrition decisions.
  The Common Sense Nutrition Disclosure Act is critical to avoid 
harming consumers' choices, jobs, and, certainly, small businesses. 
This bill was drafted to address the challenges of an overly 
prescriptive, one-size-fits-all approach to regulation affecting a 
very, very diverse industry.
  We need to ensure that the law works for all food establishments: 
convenience stores, supermarkets, grocery stores, pizza shops. All have 
enormous challenges complying with the regulations as written.
  This bill is going to provide those entities with the flexibility 
and, frankly, the certainty that they need to comply without 
compromising consumers' access to nutrition information. The Common 
Sense Nutrition Disclosure Act will establish a more reasonable 
standard for Federal regulations and allow nutritional information to 
be provided by a remote access menu for establishments where the 
majority of orders, in fact, are placed off premises.

                              {time}  1245

  Consumers should have this information when they are placing an 
order. A menu board may work for some businesses where customers order 
at the counter where they also pay, but for an establishment where most 
people now order online or from a phone, having the calorie information 
when they pick up their order won't be very helpful to that consumer.
  This legislation also takes steps to preserve local foods and fresh 
items that might be sold at just a few locations. To do so, the bill 
clarifies that menu labeling regulations are intended for standard menu 
items, defined as those items with substantially the same recipe 
prepared in substantially the same way with substantially the same food 
components that are routinely included on a menu or menu board or are 
routinely offered as a self-service food or food on display at 20 or 
more locations.
  This bill also eliminates draconian penalties that are required in 
current law by removing criminal felony penalties for store managers 
and allowing restaurants and retailers to take corrective actions. This 
shields small-business owners and their employees from frivolous 
lawsuits based on inadvertent human error. No one ought to be 
criminalized for putting too many pickles on a sandwich or maybe not 
enough olives. This bill further clarifies that establishments will 
have 90 days to correct a violation before FDA brings enforcement 
action.
  The food retail sector employs--let's face it--millions of Americans 
and provides access to affordable, healthy options. The Federal 
Government shouldn't impose arbitrary regulations that are going to 
cause unnecessary harm to businesses and consumers.
  The businesses impacted by this bill widely support providing 
consumers with nutritional information to better inform their food 
decisions, but they want to do it in a practical and a commonsense way. 
This legislation provides clear guidance to small-business owners, 
ensuring compliance and, at the same time, delivering critical 
information.
  Mr. Speaker, I want to thank my Energy and Commerce Committee 
colleagues for their work on both sides of the aisle. I urge its 
passage today, and I reserve the balance of my time.
  Ms. SCHAKOWSKY. Mr. Speaker, I yield myself such time as I may 
consume, and I rise in opposition to H.R. 772.
  This bill is completely unnecessary, overly prescriptive, and would 
deny consumers critical information about the food that they eat.
  At a time when our country is facing an obesity epidemic--I would 
say, really, crisis--we should not be undermining efforts to educate 
consumers about the nutritional value of foods, including calories.
  As a country, we pay a high price for obesity. It is estimated that 
medical costs for obesity top $190.2 billion, annually. Childhood 
obesity alone is responsible for $14 billion in direct medical costs. 
We should be embracing efforts to reduce this enormous cost to our 
healthcare system. A Harvard study found restaurant menu labeling could 
prevent up to 41,000 cases of childhood obesity and could save over 
$4.6 billion in healthcare costs over 10 years.
  So if you want to eat pizza and fries, that is great, but why not 
have the opportunity to know how many calories are in that pizza and 
fries? You should be able to have that information. More information 
for consumers is a good thing.
  The menu labeling law that passed in 2010 requires chain restaurants 
with 20 or more locations to provide consumers with basic nutritional 
information like calorie content for standard food and beverage items 
on menus. Since then, the FDA has been working to implement this rule 
only to face numerous delays along the way.
  Research has shown that calorie information can help people make 
healthier choices, and 80 percent of Americans support providing this 
type of calorie information on the menu. But far from common sense, the 
legislation we are considering today would undermine the law. H.R. 772 
takes us backwards by undermining the law and further delaying consumer 
protections.
  This is not about flexibility. This bill just gives cover to bad 
actors and special interests that do not want to comply with the law.
  First, it would allow food establishments to display calorie 
information in ways that would only serve to confuse and mislead 
customers. It allows the food establishment to set arbitrary serving 
sizes and cut the calorie count way below what a normal person would 
eat. Without standardized calorie reporting for menu items, people will 
have a tough time figuring out and computing nutrition information and 
comparing across items. It is deceptive to label an entree or a muffin 
as multiple servings because we all know that they are mostly consumed 
by one person in one sitting.
  Second, it would deny consumers the opportunity to view calorie 
information and other nutritional information regardless of how or 
where they purchase food from a chain restaurant. Not only does it 
allow deceptive serving size manipulation, this bill would allow food 
establishments to make that information difficult to find. Calorie 
labeling is not useful if it is posted somewhere that it will not be 
seen.
  Provisions in this bill would deny customers nutritional information 
from not only inside a pizza chain, but inside fast-food and other 
chain restaurants if the majority of their orders are placed offsite, 
like on the telephone or online.
  For example, under this bill, a restaurant or similar retail food 
establishment could have the option to only list nutritional 
information online or via some other remote-access menu, thereby 
denying consumers who order in a brick-and-mortar location access to 
the information. Speed limits are not useful if they are hidden on a 
highway, and calorie counts cannot help if they are concealed from the 
public.
  Finally, it has been nearly 8 years since the original menu labeling 
requirements were passed, but this bill would once again delay the 
final menu labeling rules and send the FDA back

[[Page H817]]

to the drawing board. The FDA has already put forth a proposed rule, 
solicited comments, and worked with stakeholders to finalize the menu 
labeling rule.

  In fact, just this past November, FDA published new draft guidance 
intended to help answer any of the outstanding questions regarding 
compliance. This guidance included sample menus and pictures to help 
food establishments tackle how to label for a variety of ingredients 
like multiple pizza toppings.
  This rule has been delayed long enough. The final menu labeling 
regulations should go into effect as scheduled in May of this year. 
Countless businesses, restaurants, and other retail food establishments 
have already invested time and money into compliance with the current 
menu labeling rules, and it would be irresponsible to further delay 
implementation of this important rule.
  This bill is another handout to businesses and an affront to 
consumers. It will keep consumers in the dark about the nutritional 
information that they need and create consumer and industry confusion.
  H.R. 772 would weaken an important tool intended to help Americans 
make informed food choices at a time when obesity and other nutrition-
related health problems are at crisis levels. That is why countless 
consumer and public health organizations oppose this bill, including 
the American Cancer Society Cancer Action Network, the American 
Diabetes Association, the American Heart Association, the American 
Nurses Association, Center for Science in the Public Interest, 
Consumers Union, and the Trust for America's Health. All of these 
health organizations oppose this legislation because it is not good for 
the health of our country or for consumers.
  Mr. Speaker, I reserve the balance of my time.
  Mr. UPTON. Mr. Speaker, I know that I have other speakers, so I am 
going to stall a little bit for time here. I am told that some of them 
may be at Jimmy John's trying to get through that menu wondering if 
they should have olives or pickles or Dijon mustard or mayonnaise, but 
they are on their way.
  I want to say we all want consumer information--we do--but we ought 
to be able to agree that food service establishments shouldn't face 
Federal criminal penalties for inadvertent failures to comply with the 
FDA's framework.
  Under the Food, Drug, and Cosmetic Act, food labeling has to be 
truthful and non-misleading. Food labeling that doesn't meet FDA's 
standard for truthful and non-misleading is deemed misbranded. Under 
U.S. Code, introducing misbranded food into commerce is, in fact, a 
prohibited act, and the liable party shall be imprisoned for up to a 
year, fined not more than $1,000, or both.
  Food to which these menu labeling requirements apply is deemed 
misbranded if the FDA's rule requirement is not met, so it is not 
necessary that the person intentionally misleads customers. Under FDA's 
framework, merely adding that extra olive or pepperoni is going to 
render the calorie content on the menu misleading and the chef then 
becomes criminal.
  Come on. People say that the FDA won't put people in jail over this, 
so I don't think there ought to be an issue codifying that in statute. 
The Common Sense Nutrition Disclosure Act will give folks an 
opportunity to correct inadvertent mistakes so long as they were acting 
in good faith, and they are going to make standards far more 
reasonable.
  Mr. Speaker, I yield 2 minutes to the gentleman from the great State 
of Michigan (Mr. Walberg), who is a member of the committee.
  Mr. WALBERG. Mr. Speaker, I join my colleagues in supporting the 
Common Sense Nutrition Disclosure Act.
  Under the Obama administration, the FDA put forward an unworkable, 
one-size-fits-all mandate on restaurants and retail food establishments 
for providing calorie and nutrition information to customers. As 
written, many businesses cannot comply with these rules and would be 
subject to onerous, arbitrary penalties.
  H.R. 772 is a bipartisan solution that makes compliance possible by 
providing small businesses with greater flexibility to provide 
nutrition information in a way that best serves their customers. It 
ensures customers receive the nutrition information they want, but does 
so in a way that takes into account the diversity of restaurants and 
food products.
  This commonsense bill takes a flexible approach that will actually 
increase access to information for customers and allow good, 
hardworking Michigan restaurants, grocers, and convenience stores to 
continue meeting the needs of consumers.
  Mr. Speaker, I urge its passage.
  Ms. SCHAKOWSKY. Mr. Speaker, how much time do I have remaining?
  The SPEAKER pro tempore. The gentlewoman from Illinois has 23 minutes 
remaining.
  Ms. SCHAKOWSKY. Mr. Speaker, I yield such time as she may consume to 
the gentlewoman from Connecticut (Ms. DeLauro).
  Ms. DeLAURO. Mr. Speaker, I thank the gentlewoman from Illinois for 
yielding the time.
  Let me, first, dispel a couple of myths that have been suggested on 
the floor of the House.
  One myth has been that small businesses are negatively impacted by 
the menu labeling requirements. Small businesses are unilaterally 
exempt from menu labeling requirements. The rule only applies to 
``covered establishments,'' meaning those that have 20 or more 
locations. This rule does not and never was intended to apply to small 
businesses. That is misinformation being given out by the majority.
  The second item which I just heard momentarily about, penalties, menu 
labeling will be subject to the exact same mechanisms and penalties as 
those for packaged food. The FDA has maintained its commitment to 
compliance, outreach, and education and has waived enforcement for the 
first year.
  Additionally, numerous State and local governments have menu labeling 
requirements, and not one chain restaurant has faced criminal 
liability--once again, misinformation being distributed by the 
majority.

                              {time}  1300

  Mr. Speaker, I rise in opposition to this special interest-driven 
attack on popular and necessary menu labeling rules.
  When we crafted the health reforms in the Affordable Care Act, we 
kept several critical goals in mind. We aimed to slow the staggering 
growth of healthcare spending, make preventive and wellness care more 
central to our health system, and give Americans access to more data so 
that they can make their own informed healthcare decisions.
  Menu labeling is an essential tool to meet all three of those goals. 
That is why I have been a longtime champion of menu labeling, and I 
fought hard to secure its inclusion in the Affordable Care Act.
  Congress passed standardized menu labeling in 2010. The goal was to 
arm Americans with the information they need to make informed 
nutritional decisions for themselves and their families.
  The language was built on consensus and compromise. It was worked out 
between a variety of interests, including industry partners and the 
National Restaurant Association.
  Industry has already had nearly 8 years of input for the 
implementation of the labeling rule, yet, with this misguided bill, 
certain sectors of the industry will tear down the progress that we 
have made. This bill would roll back and weaken this crucial step to 
combat the obesity epidemic in the United States. This is obstruction. 
American families are paying the price in their healthcare costs.
  In 2015, sales at restaurants and bars surpassed spending at grocery 
stores for the first time. In a typical day, one-third of our children, 
4 in 10 adolescents, and one-third of adults eat at a fast food 
restaurant. Americans are eating, on average, one-third of their 
calories outside of the home. Nutritional information must be made 
readily available where the consumer is at the point of purchase.
  A health impact assessment from Los Angeles County found that menu 
labeling could avert 40 percent of the 6.75 million-pound average 
weight gain in the country. You think of that in terms of healthcare 
costs and the impact that decrease would have.
  Our children are especially at risk. Today, more than one-third of 
our kids

[[Page H818]]

and adolescents are overweight or obese. Children eat more than twice 
as many calories at a restaurant than they do at home. They consume 
less nutrients and more saturated fats. The impact on our kids alone 
should be reason enough to oppose a measure that undermines a 
consumer's ability to make informed, nutritious choices at mealtimes.
  Menu labeling is popular. In a national poll, over 80 percent of 
Americans support menu labeling in chain restaurants. Over 100 
nutrition and health organizations support menu labeling. Chains from 
Starbucks to Panera Bread to McDonald's are already implementing menu 
labeling. The rest of the industry must follow suit.
  Consumers have a right to make an informed decision. It is 
disrespectful for the industry and their partners to argue that the 
American people cannot understand menu labeling. Give people the 
ability to make their choice.
  You go in to eat, it has been a great day, you look at the board, you 
see something that you want, you look at the calories and say: Today, I 
think I will watch my calories. You order accordingly.
  Other days, it is a bad day. You go in and you throw caution to the 
wind. You say: I am going to order whatever I can, no matter what the 
calorie count is.
  This is about the right to choose and freedom of choice. That is what 
we are talking about here today. This bill denies consumers the right 
to nutritional information at that point of purchase. Even if 49 
percent of orders are placed from in-store menus, food establishments 
could bury menu labeling online.
  Multiple studies have shown that providing calorie menu labeling 
information can help Americans make lower calorie choices, but they 
cannot do this if they do not have the information they need.
  This bill increases consumer confusion and allows restaurants to list 
deceptive portion sizes, listing an entree as multiple servings even 
though these items are most often consumed by one person.
  It weakens enforcement and consumer protection, completely removes an 
establishment's incentive to comply with the menu labeling 
requirements, and removes the ability of individuals to hold retail 
food establishments accountable for violations to the food labeling 
law.
  The existing law is already extremely flexible. I said restaurants 
with less than 20 locations. Mom-and-pop small businesses are excluded. 
I don't believe my colleagues on the other side of the aisle understand 
that. Read the legislation.
  Let me mention something which has been very interesting, and that is 
about pizza companies. I come from New Haven, Connecticut, an Italian-
American neighborhood. I know something about pizza.
  What we have done with the industry is to work with them. The FDA 
opened the door to allow them what they asked for: to give a range of 
calories on a slice of pizza. They have done it.
  These are FDA charts which demonstrate how easily you can put a label 
on the food so that people understand what the calories are. I will 
show this one. Calories are listed per slice. That is what the industry 
wanted. That is what we did. They have the ranges that they have for 
their various toppings.
  Don't let the other side sell you a bill of goods. The FDA has 
conceded that they can list the calories in a single slice rather than 
an entire pizza.
  This all illustrates that the Food and Drug Administration has 
already been working closely with the industry to address their 
concerns. We should let them work through this process, rather than 
complicating it with legislation that, in fact, would harm what we have 
been doing, what we have worked on all these years: meaningful, 
impactful work on menu labeling with a single stroke.
  This is a special interest-driven bill. It is not the answer. I urge 
my colleagues to oppose it.
  Mr. Speaker, I include in the Record a document that outlines the 
myths that are perpetrated by the majority and what the underlying 
facts are.

                   Busting the Myths of Menu Labeling

       The Menu Labeling Rule provides consumers with nutritional 
     information on the foods they purchase. This crucial 
     information would give Americans a tool to make healthy 
     choices. Nevertheless, the lobbying of special interest 
     groups has resulted in H.R. 772, a bill based on nothing more 
     than misleading myths.
       MYTH No. 1: Small businesses are negatively impacted.
       Small businesses are unilaterally exempt from menu labeling 
     requirements. The rule only applies to ``covered 
     establishments,'' meaning those that have 20 or more 
     locations. The rule does not, and never was intended, to 
     apply to small businesses.
       MYTH No. 2: Labeling requirements are burdensome and 
     difficult to comply with.
       In reality, nutritional labeling requirements are 
     straightforward and easy to implement, which is why numerous 
     food retailers are already labeling calories on their menus. 
     Furthermore, FDA has sought eight years of industry input 
     which has resulted in the most flexible disclosure 
     requirements to date. Nutritional information for complex 
     menu items can be disclosed in ranges, without the need to 
     estimate exact calories for various combinations.
       MYTH No. 3: Labeling requirements only create consumer 
     confusion.
       The Menu Labeling Rule actually reduces consumer confusion 
     by providing nutritional information at the point of 
     purchase, and ensures that portion sizes are listed 
     realistically. The rule will allow for a standard nutritional 
     information format which will facilitate consumer 
     understanding. Without it, consumers will be subject to 
     deceptive portion sizes which can lead to them making 
     misinformed decisions based on misleading information.
       MYTH No. 4: Enforcements and penalties for noncompliance 
     are harsh and unreasonable.
       Menu labeling will be subject to the exact same mechanisms 
     and penalties as those for packaged food. FDA has maintained 
     its commitment to compliance outreach and education, and has 
     waived enforcement for the first year. Additionally, numerous 
     state and local governments have menu labeling requirements, 
     and not one chain restaurant has faced a lawsuit.
       MYTH No. 5: Menu Labeling Requirements are unpopular among 
     American consumers.
       Consumers have unequivocally maintained their support for 
     menu labeling, with a recent poll showing support as high as 
     80 percent among Democrats, Republicans and Independents. 
     Moreover, more than 100 public health organizations and 
     health professionals have voiced their opposition to H.R. 772 
     because it would ``undermine congressional intent to provide 
     access to calorie labeling in a broad range of chain food 
     service establishments.''
       Congressional Republicans have yet again bowed to special 
     interest and created a carve-out for big food corporations 
     who do not have the best interests of Americans at heart. 
     Overwhelmingly, consumers want to know the nutritional 
     information of the foods they are eating.
       Please oppose H.R. 772--as well as any efforts that seek to 
     undermine consumers.

  Mr. UPTON. Mr. Speaker, might I ask how much time each side has 
remaining on this bill?
  The SPEAKER pro tempore (Mr. Lamborn). The gentleman from Michigan 
has 23 minutes remaining. The gentlewoman from Illinois has 14\1/2\ 
minutes remaining.
  Mr. UPTON. Mr. Speaker, I yield myself 30 seconds.
  Mr. Speaker, I might say the previous speaker, my friend, asked about 
what the original stakeholders had in mind before these regs were 
written.
  I was one of those. This was my bill. This was a bipartisan bill 
offered by Jim Matheson and Fred Upton a lot of years ago. It was never 
our intent to put people behind bars for having some misinformation 
based on the number of olives or pickles or Dijon or mayonnaise. It is 
just wrong. It was not our intent to do what the FDA has now done.
  Mr. Speaker, I yield such time as she may consume to the gentlewoman 
from Washington (Mrs. McMorris Rodgers), the author of this bill and a 
member of our committee, where it passed 39-14.
  Mrs. McMORRIS RODGERS. Mr. Speaker, I thank the gentleman for 
yielding.
  Mr. Speaker, I rise today with legislation to address one of the most 
burdensome rules in the Obama administration.
  When the FDA announced its final rule implementing a national menu 
labeling standard in 2014, the intent was twofold: deliver customers 
increased access to nutrition information and establish a uniform, 
single national standard.
  However, in trying to establish this uniform standard, the FDA's 400-
page rule attempts a one-size-fits-all approach to an industry as 
diverse as its ingredients.
  Under the current rule, every deli and salad bar offering, every 
possible pizza topping combination will have to be calculated and their 
calorie count displayed on physical menus.

[[Page H819]]

  Last week, I was home in Spokane and visited My Fresh Basket. This 
newly opened grocery store is also a great place to eat lunch, with 
fresh, local options and made-to-order food. This rule would mean new 
physical signage every time this locally owned grocer changes the 
options they offer, which is just about every day.
  This bill is not about the merits of calorie counts. This bill does 
not remove the requirement of calorie counts on menus. This bill 
certainly does not make it more difficult for customers to receive 
nutritional information.
  This bill, at its very core, is about flexibility for businesses to 
meet the requirements of the rule and present this calorie information 
in a way that makes sense for them and their customers.
  The one-size-fits-all approach proposed by the FDA is problematic for 
two reasons. First, the made-to-order portion of the food industry 
offers endless, constantly changing combinations of ingredients. For 
some sandwich shops and pizzerias, the possible variations are in the 
tens of millions.
  The FDA wants these restaurants to put on paper all of these 
variations and their calorie counts and have it publicly displayed in 
the restaurant. It is unrealistic and it is not a good use of the 
businessowner's time.
  Second, digital and online ordering is customers' preferred method 
for ordering. Nearly 90 percent of orders in some restaurants are 
placed without an individual ever stepping foot into the restaurant.
  So tell me, how does it make sense to force a restaurant to have a 
physical menu with calorie listings when 90 percent of your customers 
aren't going to see it? How does it make sense to force a customer to 
navigate millions of combinations to find the nutrition information 
that matches their order?
  This legislation provides flexibility in how restaurants provide the 
nutritional information. It makes it easier for customers to actually 
see and understand the information because it is displayed where 
customers actually place orders, including by phone, online, or through 
mobile apps.
  By bringing this rule into the 21st century, customers can trust that 
they are getting reliable information in a way that is easy to access 
and is customer-friendly.
  I also want to take this opportunity to clarify that this bill does 
not change the preemption provision in the underlying statute. This 
ensures that no State or political subdivision of a State may directly 
or indirectly establish or enforce any requirement for nutrition 
labeling of food that is not identical to the requirement laid out in 
the final regulations.
  While some States may disagree, I am committed now and moving forward 
to ensuring that we have one unified menu labeling requirement.
  Before I close, I want to thank all my colleagues and the 
stakeholders for their hard work on this bipartisan legislation. This 
has been a team effort over a number of years now, and I appreciate 
their support.

  Finally, I encourage my colleagues on both sides of the aisle to 
support this important amendment and to ultimately vote ``yes'' for the 
bipartisan Common Sense Nutrition Disclosure Act.
  Ms. SCHAKOWSKY. Mr. Speaker, I yield 2 minutes to the gentleman from 
New York (Mr. Engel).
  Mr. ENGEL. Mr. Speaker, I thank my friend from Illinois for yielding 
and for the good work she is doing on this and so many other bills.
  Mr. Speaker, I rise in opposition to this bill.
  In today's world, when technology allows us to constantly be logged 
into the workplace, it is understandable that Americans often find 
themselves seeking more convenient meals outside of the home.
  But dining out should not be about sacrificing nutrition. I believe 
Americans should have all the tools necessary to make informed choices 
about what they eat and what they feed their families.
  Why wouldn't we want that? Why wouldn't we let the consumer decide? 
Why would we try to rob some tools and take things away from them?
  Menu labeling gives Americans those tools, and we have been making 
progress towards more transparent labeling for consumers. It is a good 
thing.
  This bill, H.R. 772, would undo that process. It delays much-needed 
transparency and will cause confusion for both consumers and 
businesses, many of which have already started implementing existing 
menu labeling requirements.
  So let's not turn back the clock. Menu labeling is both a vital 
public health tool and an important consumer protection. People are 
smart enough to make their own choices. If you want to make it 
impossible for them to know everything, then you are not allowing the 
consumer to make the final choice in an informed way. I don't see why 
we would want to do that.
  Mr. Speaker, I urge my colleagues to vote ``no.''

                              {time}  1315

  Mr. UPTON. Mr. Speaker, I yield 2 minutes to the gentleman from 
Georgia (Mr. Carter), a member of the Energy and Commerce Committee.
  Mr. CARTER of Georgia. Mr. Speaker, I thank the gentleman for 
yielding.
  Mr. Speaker, I rise today in support of my good friend Mrs. McMorris 
Rodgers' bill, the Common Sense Nutrition Disclosure Act. This 
legislation would make commonsense reforms to menu labeling and help 
ease the burden on businesses, while providing consumers with the 
information that they need.
  The regulations, finalized by the Obama administration in 2014, 
presented incredible challenges to businesses and would cause some 
insurmountable challenges for them to be in compliance with the law. 
This bill would allow for a more targeted approach and provide relief, 
while ensuring people have the nutritional information they need to 
make educated decisions about their health.
  Let's take a second to look at how exactly this bill benefits people 
across the country. This directs restaurants and food establishments to 
disclose visible information on calorie counts, the number of calories 
per serving, and accounts for online ordering with remote-access 
labeling directions. Self-service establishments will need to place 
signage with nutritional information for each food item.
  Finally, it ensures that the nutritional disclosure of food contents 
would need to comply with current standards, ensuring that restaurants 
will adhere to a guideline that they know they can trust.
  While this is good for consumers, it also makes important reforms for 
the establishments. It sets out protections to prevent frivolous 
lawsuits. It puts forth a good faith threshold so that businesses 
aren't ultimately penalized for what could be a small error from one of 
their employees. It gives establishments the flexibility in labeling 
that may not maintain the same item list at all of their locations.
  This legislation is about ensuring integral parts of our communities 
aren't subjected to unfeasible regulatory expectations while providing 
transparency to customers.
  I am proud to cosponsor this legislation, and I urge my colleagues to 
support the underlying legislation.
  Ms. SCHAKOWSKY. Mr. Speaker, I yield 3 minutes to the gentleman from 
California (Mr. Cardenas).
  Mr. CARDENAS. Mr. Speaker, I thank the gentlewoman from Illinois for 
yielding me this time, and I also want to thank her so much for her 
diligence, her efforts, and her sincerity in trying to make this issue 
and this bill, and many bills on this issue, as good as possible.
  Although we may disagree on the final version of this bill, again, it 
is my sincere wish that we will continue to work together as this issue 
will never go away because nutrition and the understanding of that for 
every American is paramount for our individual health and for 
communities as a whole.
  Mr. Speaker, I rise in support of H.R. 772, the Common Sense 
Nutrition Disclosure Act of 2017. I am proud to colead this bill with 
my colleague, Congresswoman McMorris Rodgers. Americans increasingly 
realize the importance of having access to accurate nutritional 
information about the food we eat, and we need to make sure that 
businesses are providing this information.
  However, no two food establishments, convenience stores, or grocery 
stores are identical, and the government

[[Page H820]]

should take that into account as we implement guidelines on making 
nutritional information available.
  As a former small-business owner myself, I know the costs and 
challenges associated with regulatory compliance. Not all businesses 
can afford a legal department to help them stay within the rules, 
despite their best intentions. This legislation would help businesses 
help consumers be smart about what they are eating.
  The FDA's 2014 rule on nutrition disclosures is set to take effect in 
May of this year, though some issues remain unresolved. This bill will 
give FDA the authority to fix these issues and hold businesses to tough 
standards they can and shall meet.
  Right now, the FDA rule exempts small businesses, but not those that 
sell to large suppliers. Those small businesses would have to undertake 
expensive nutritional analysis in order to comply with the law, even if 
they don't have the resources.
  Another example is, right now, the FDA rule would require delivery 
restaurants to post nutritional information in their brick-and-mortar 
establishment instead of online, even though nobody would see it, 
especially those who go online to order their food. This bill fixes 
that.
  Finally, this bill reins in out-of-proportion penalties in the 
current rule that would have severe, unintended consequences. No one 
should have to worry about losing their business if they mistakenly 
make sandwiches with too much meat or cheese.
  Importantly, this bill makes sure the FDA is still able to enforce 
the law in situations in which businesses are misleading their 
customers. This bill doesn't include a time delay, meaning the FDA 
would be able to implement the nutrition disclosure rules sooner than 
later.
  I urge my colleagues to join me in supporting this bill to help the 
businesses in districts like mine to help our constituents eat 
healthier.
  Mr. UPTON. Mr. Speaker, I have no further speakers. I reserve the 
balance of my time.
  Ms. SCHAKOWSKY. Mr. Speaker, I yield myself such time as I may 
consume while I am waiting for an additional speaker.
  I want to hold up this board. This is an example that the FDA gave to 
businesses on how they could easily--we see all kinds of signs like 
this. Sometimes it is the price at the end of the item, and, in this 
case, it would be the calories.
  So it talks about a slice of pizza. Now, I am feeling kind of chunky 
today, and I go into the pizza parlor, and it says that for cheese 
pizza, for th original, it is about 200 to 240 calories; for the thin 
and crispy, 150 to 190 calories; and for pan--now, we love our pan 
pizza, our deep-dish pizza in Chicago, but that is 260 to 300 calories.

  So I am thinking: Yeah, I want pizza, but I think I am going to go 
with the thin and crispy, which is going to save me at least 110 
calories.
  Now, what do I want on top? I am looking now at all the things, the 
meats and the veggies that can go on top, and each one of them has 
calories per slice listed there. Simple. I am a pretty good--you know, 
I can do math pretty well, and I can also compare. Do I want something 
that is up to 50 calories or something that is 20 calories? And I can 
look at this sign and make a decision for myself.
  This is not too cumbersome. This is something that could easily be 
displayed. I go to a lot of restaurants that already are in compliance 
and have the calories, and if I am like between the pasta and the 
salmon--and, again, I want to make that decision. It is good for me to 
know what is the real difference in calories.
  I want to say, I started out as an activist in the grocery store. I 
was a very, very young housewife many years ago, 1970, when a small 
group of women got together. We called ourselves National Consumers 
United because we wanted to know how old our food was in the grocery 
store.
  Everything was code dated. You couldn't tell how old the food was, 
and we were actually told that if we didn't like it, we could shop 
somewhere else. Well, we started cracking the codes like detectives, 
pushing the stock boys--and they were all boys--against the shelf, and 
they were telling us how they put the old stuff in front and the new 
stuff in the back.
  Finally, we were able to get one of our retailers to say: Come to 
Jewel; our food has freshness dates. And people loved it. And it turned 
out that, even over the initial opposition from the retailers, it was 
good for them, because people appreciated that and went to their 
stores.
  Now, those dates on food are ubiquitous. Customers like it, retailers 
like it, it is better, and this would be yet another thing that we 
could do.
  Mr. Speaker, I yield 2 minutes to the gentleman from New Jersey (Mr. 
Pallone), the ranking member on the Energy and Commerce Committee.
  Mr. PALLONE. Mr. Speaker, I want to thank my colleague from Illinois 
for all her work on this and so much other good legislation--not the 
bill that is on the floor today, though.
  I rise in strong opposition to H.R. 772. This bill would undo years 
of progress towards implementing menu label requirements and only lead 
to greater consumer and industry confusion.
  We included a requirement in the Affordable Care Act that certain 
restaurants and other retail food establishments with 20 or more 
locations display calorie and other nutritional information in order to 
give consumers access to the information they need to make healthy 
choices in a way that would be consistent and easy to understand.
  Now, GOP efforts to sabotage the Affordable Care Act continue with 
this legislation today, which also undermines the ACA's prevention 
goals. Unfortunately, H.R. 772 would weaken the current menu labeling 
requirements and lead to extended compliance delays, putting those 
establishments who have already begun complying at a disadvantage.
  While proponents of this bill claim it will increase flexibility for 
covered entities, in reality, this bill would allow restaurants and 
other retail food establishments to determine their own serving sizes 
and what would be the one designated menu or menu board for the 
purposes of disclosing caloric information. It would also permit 
establishments to disclose nutritional content for certain food items 
through a choice of methods instead of utilizing a standardized format.
  H.R. 772 also would limit the civil liability of covered entities, 
impeding private citizens' ability to take legal recourse should an 
establishment fail to comply with the menu labeling requirements.
  And as I noted when we considered a similar version of this bill in 
the last Congress, I continue to believe that legislation is not the 
right approach to address the concerns raised by some industry groups 
regarding the menu labeling rule.
  The FDA has been diligently working with stakeholders, since the law 
was passed, to find a workable approach that provides consumers with 
transparency when eating out, while also ensuring covered 
establishments have the tools they need to implement the rule.
  Just this past November, FDA issued new supplemental draft guidance 
to help answer any outstanding questions still posed by industry.
  The SPEAKER pro tempore. The time of the gentleman has expired.
  Ms. SCHAKOWSKY. Mr. Speaker, I yield an additional 30 seconds to the 
gentleman from New Jersey.
  Mr. PALLONE. Mr. Speaker, the FDA has demonstrated that it is best 
positioned to address specific concerns with the regulation, and this 
new guidance is an example that FDA is taking the necessary steps to 
make compliance attainable.
  Again, we have a new FDA Administrator appointed by the Trump 
administration, and he is trying to work with industry to get this 
done. So we shouldn't roll back the clock and undo the progress we have 
made.
  Instead, we should be moving forward with the menu labeling 
requirements as they currently stand and are set to go into effect in 
May of this year. H.R. 772, unfortunately, would do the opposite; and, 
for this reason, I oppose the bill and urge my colleagues to oppose the 
bill as well.
  Mr. UPTON. Mr. Speaker, I continue to reserve the balance of my time.
  Ms. SCHAKOWSKY. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, I wanted to--you know, your friends at Jimmy John's are 
not

[[Page H821]]

going to go to jail. In fact, just this past November, in new 
supplemental draft guidance, FDA explained that the agency, ``does not 
intend to penalize or recommend the use of criminal penalties for minor 
violations.'' The FDA went on to explain that minor violations would 
include inadvertently missing a calorie declaration for a standard menu 
item on the buffet; minor discrepancies in the type, size, color, 
contrast of calorie declarations; minimal variations or inadvertent 
error that would only minimally impact the calorie declaration, such as 
adding extra slices of pepperoni or an extra dollop of ketchup. This is 
just not going to happen.

  Let me just say, in closing, the law that Congress passed almost 8 
years ago--so the calls for more time is just ridiculous--should be 
allowed to go into effect. It is long past due. This is about freedom, 
about freedom of consumers to make informed choices.
  I know my friends across the aisle talk about freedom all the time. 
This is about freedom to make choices that will help you. Empowering 
consumers to make informed decisions that benefit their health is 
exactly what the current law allows. H.R. 772 would undermine that 
important goal.
  Mr. Speaker, I yield back the balance of my time.
  Mr. UPTON. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I would just remind my colleagues that this bill is 
supported by literally hundreds of national State and local 
organizations, including the National Grocers Association, the National 
Association of Convenience Stores, the Food Marketing Institute, the 
American Pizza Community, the National Association of Truck Stop 
Operators, amongst many, many others.

                              {time}  1330

  I want to also reiterate that this bill, again, is bipartisan and has 
passed the Energy and Commerce Committee 39-14, in this Congress, and 
last year in the House, where it passed 266-144.
  The bottom line is this: it clarifies that establishments acting in 
good faith will not be penalized, particularly in a criminal way, for 
inadvertent human error in reasonable variations in serving sizes and 
ingredients, giving them 90 days to correct a violation before 
enforcement action is brought by the FDA.
  Mr. Speaker, I urge my colleagues to vote in support of this bill, 
and I yield back the balance of my time.
  Mr. DeSAULNIER. I rise to express my strong opposition to H.R. 772, 
the so-called Common Sense Nutrition Disclosure Act.
  I have worked at every level of the restaurant business, starting as 
a dishwasher and busboy, and eventually managing and owning various 
restaurants in the San Francisco Bay area. As a former restaurateur and 
a member of the California Restaurant Association, I have a deep 
appreciation for the value American consumers place on nutritional 
information when determining their food purchases.
  Numerous studies, like the International Food Information Council and 
elsewhere, suggest that nutritional information is second only to taste 
when choosing what to eat from a menu. Other peer-reviewed studies have 
found that consumers make healthier choices when nutrition information 
is placed directly on the menu.
  Making nutrition information readily available and standardized is an 
important step in fighting the growing epidemic of obesity and chronic 
disease. According to the CDC, more than two-thirds of American adults 
are overweight or obese, nearly a third of American children are 
overweight, and the prevalence of childhood obesity children has more 
than tripled since 1971.
  That is why, as a California State Senator, I co-authored the first-
in-the-nation menu labeling law. This bipartisan legislation was passed 
with industry support and cooperation, and signed by a Republican 
governor.
  In contrast, the bill before us today creates giant loopholes in the 
ACA's national menu labeling provisions and allows selected 
establishments to arbitrarily determine serving sizes, and obscure the 
total number of servings per item. For example, if this bill would 
become law pizza chains, supermarkets, and convenience stores would be 
exempt from having to provide information to consumers at the point-of-
sale. The bill would also further delay the implementation of our 
existing nationwide menu labeling efforts that are supported by more 
than 75 percent of American consumers.
  Particularly harmful for my constituents, H.R. 772 would preempt 
state efforts to address the obesity epidemic locally. The bill also 
undermines state and local efforts to enforce or enact their own food 
labeling laws, and extends to food labelling in general, not simply 
menu labeling as the bill's title would lead us to believe.
  This misguided legislation unravels all of the cooperative work being 
done by the restaurant industry and government agencies across the 
nation. I urge my colleagues to oppose this effort to undermine local 
transparency efforts and vote No on H.R. 772.
  The SPEAKER pro tempore. All time for debate has expired.
  Pursuant to House Resolution 725, the previous question is ordered on 
the bill, as amended.
  The question is on the engrossment and third reading of the bill.
  The bill was ordered to be engrossed and read a third time, and was 
read the third time.
  The SPEAKER pro tempore. The question is on the passage of the bill.
  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.
  Ms. SCHAKOWSKY. 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.

                          ____________________