[Congressional Record (Bound Edition), Volume 162 (2016), Part 2]
[House]
[Pages 1740-1747]
[From the U.S. 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

[[Page 1741]]

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'' 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.

[[Page 1742]]

  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 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.

[[Page 1743]]

  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 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

[[Page 1744]]

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.
  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

[[Page 1745]]

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 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,

[[Page 1746]]

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.
  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

[[Page 1747]]

     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.

                          ____________________