FDA: Obamacare’s Calorie-Count Mandate Now In Effect—But Not Enforceable

By Chris Neefus | August 27, 2010 | 4:41 PM EDT

President Barack Obama speaks in Seattle as part of a cross-country campaign trip on Tuesday, August 17, 2010. (AP Photo/Carolyn Kaster)

(CNSNews.com) - A mandate buried in the health-care bill President Barack Obama signed in March is now confounding not only the vending-machine operators who are supposed to follow it but also the federal regulators who are supposed to enforce it.
The Food and Drug Administration has ruled that the provisions in Obamacare that mandate that restaurant owners and vending-machine operators disclose the calorie contents of the foods they sell retroactively took effect on the day Obama signed the bill.
The FDA, however, has not been able to give vending-machine operators complete and final guidance on how they should make their machines comply with the law, thus causing “confusion” and “frustration” in the industry, and leading the agency to refrain for now from enforcing the provision.
Section 4205 of the Patient Protection and Affordable Care Act (PPACA) says companies with 20 or more restaurants or vending machines must disclose nutrition content for standard menu items, and that for vending machines in particular, the company “shall provide a sign in close proximity to each article of food or the selection button that includes a clear and conspicuous statement disclosing the number of calories contained in the article.”
The FDA has ruled that this section of the law went into effect on March 23, 2010, when President Obama signed it, and has laid out detailed instructions for how chain restaurants should display the calorie counts of each menu item, along with definitions of each term involved in the regulation. The FDA has not managed to give similarly detailed guidance to vending machine operators. In fact, the FDA guidance produced on the question thus far has only reiterated the law’s mandate that companies that operate 20 or more vending machines must “immediately disclose, in a clear and conspicuous manner,” the number of calories contained in each snack item or drink.
Neal Monroe, vice president of government affairs at the National Automatic Merchandising Association (NAMA) which represents vending machine operators, says he was told by the FDA that they were “still trying to get their arms around” how to implement the provisions of the law.  The resulting confusion is a problem for people in his industry.
“There’s definitely confusion and a little bit of frustration from our folks who want to comply with the regulations,” Monroe told CNSNews.com. “They want to provide this information to their customers.”
Monroe pointed out that people “recognize that the snacks and the drinks have the nutritional facts panel already on the packaging. It’s just a unique situation.”
According to the FDA, it hopes to issue a final guidance to vending machine operators by December. But Monroe says the agency told him on a conference call it could not promise anything until the spring.
“There was a conference call with the Food and Drug Administration this week, and they’re hoping to provide us guidance sooner rather than later, but they can’t promise any guidance or regulations until March of next year,” he said.
That would mean a full year had passed  between Obama signing the law and a federal regulatory agency figuring out how to enforce it.
The FDA did not respond to an inquiry from CNSNews.com.
The current guidance on the vending-machine mandate concedes: “FDA is aware that industry may need additional guidance from FDA and time to comply with the provisions of section 4205 that became requirements immediately upon enactment of the law. Accordingly, FDA expects to refrain from initiating enforcement action until after a time period established in the final guidance. FDA is interested in comments on the appropriate time period for enforcement after the issuance of final guidance. FDA anticipates issuing final guidance in December 2010.
Vending machine operators, meanwhile, are worried about whether their small businesses will survive this single federal regulation that was sandwiched into the massive health care bill.
“To give you an idea of the economic impact, a vending operator who has just 20 machines is making less than $4,000 a year in profit,” said Monroe. “And these regulations cost between $3 and $100 per machine.”
“This could be an enormous economic hit for them,” he told CNSNews.com.
“What we are concerned about is the impact of the regulation on our small business people in this economic situation,” said Monroe. “The climate is pretty tough. As unemployment increases, there are fewer workers in the factories, there are fewer people buying snacks, so this is a—a pretty tough economic hit.”
Monroe faulted the vagueness of the original statute in the health care bill for some of the current uncertainty. “In a 2,000-plus page bill, vending had one sentence (that will affect) at least 90 percent of the industry,” he said.