The Food and Drug Administration (FDA) missed its 2011 deadline to finalize the calorie disclosure rule proposed in April 2011. The rule, according to an FDA official who spoke at the 2011 National Automatic Merchandising Association (NAMA) OneShow, will require operators with 20 or more machines to post product calories for items available in the vending machine, prior to purchase. The official confirmed that a nutritional panel at the point of sale will exempt the vending operator from complying with the FDA rule.

Ruling In Consideration

Currently, the proposed rule is being deliberated. Sebastian Cianci, policy analyst and press officer with the FDA, said, "FDA is working diligently on the final rule for vending machine calorie labeling and is considering the comments it received in response to the proposed rule."

He indicated the FDA isn't permitted to discuss the specific content of the rule before it publishes, but based on the comments received, the FDA may make adjustments to what was proposed.

Although there are no final requirements yet, many industry technology suppliers have developed solutions that meet the current version of the rule and, hopefully, the final version. One example is video screens at the point of sale which display nutritional information for each product in the machine. Many are available as retrofits, like the Vendscreen touch screen and the VIT3 interactive touch screen from IntuiSense Technologies, a young French company. Many are also built into new machines, such as Kraft's diji touch.

Retrofit video screens usually require operators to update the data content to put on the screen, although some technology suppliers have developed databases for this to be done, An example of a touchscreen connected to an updated database is Vendors Exchange International, Inc. (VEII)'s MIND (Make Informed Nutritional Decisions) stand alone screen and the customizable Revision vending machine door with integrated touch screen that uses the MIND database.

Some solutions replace traditional keypads, such as U-Select-It's iCart. This full color, 7-inch touch screen replaces the traditional keypad unit and displays nutritional information prior to purchase.

Rule Requires Calories Only

"Today, all it's really requiring is the number of calories there is in the whole package," explained Brent Garson, president, VEII. For situations where technology solutions aren't an option, VEII has a plastic, retrofit price roll for machines. Instead of the product prices, it shows calories, going up in increments that will closely match vending offerings. To meet the needs of the FDA's rule, operators will need a "calorie" roll for each spiral in the machine. Each time a new product is filled, or the planogram changed, the calorie rolls need to be manually changed.

Garson's biggest concern about the proposed rule is the need for a safe harbor clause. "We'll be trying to do the right thing," he said, "but we'll need some protection in case the information isn't accurate." The accuracy might be affected by an ingredient change by the manufacturer or simply a route driver substituting a different product. He hopes to see a safe harbor clause similar to good Samaritan laws that protect people who try to assist injured parties.

Protection from prosecution for inadvertent human error in labeling of vending products was mentioned in several comments presented to the FDA during the comment period. A letter from the Americans for Limited Government argued the FDA must make a provision that errors in providing this information is not considered "misbranding of any food," which is prohibited, among other things, in the Food, Drug and Cosmetic Act at 21 U.S.C. § 331. The letter continues to say misbranding food is punishable by imprisonment for up to a year and a $1,000 fine for the first offense and three years imprisonment and a $10,000 fine for the second offense, under that law.

Comments On The Rule

Sandy Larson, senior director and counsel government affairs for NAMA, said the comments to the FDA focused on allowing the operators as much flexibility as possible. "We didn't want to see a certain size, color, font, etc. required" she said. She believes if compliance is left unspecific, even electronic means, such as QR codes taking the consumer to Websites with nutritional data, would comply.

It stands to reason if QR codes take customers to websites with product information, that would satisfy the FDA rule. However, the operators would need to have QR codes on each machine, perhaps each product spiral, and then maintain a database of the product calories, updating the database each time a new product was added or the calories changed.

With emerging technology as a possible solution to the calorie labeling problem, NAMA has taken a bold step.  The association, along with its marketing firm, Healy & Schulte, has developed a free mobile-device application called the “Vendometer.” Available now to iPhone and iPad users, Vendometer offers consumers detailed nutritional information and ingredients listings for more than 4,000 food and beverage products sold in vending machines nationwide.  When a consumer downloads the free app from iTunes and taps on the icon, the home screen provides choices for searching, browsing product listings, or learning more about Vendometer.  The search and browse functions connect consumers live to the MIND database from VEII, which calls up a color photograph of the product along with its package nutritional label and ingredients listing, going far beyond the FDA’s proposed calorie disclosure rule.  Of course, consumers must always check the current product packaging for the most up-to-date nutritional information. 

Front of Packaging Label As Compliance

A manufacturer funded solution, such as front-of-package (FOP) labeling, has been proposed by some, including the National Confectioners Association. Laura Shumow, director of technical and regulatory affairs, can envision vending operators making FOP labels a requirement of their suppliers/manufacturers. "It makes sense as a disclosure system," she said about FOP labels.

While not common in the industry yet, there have been a few manufacturers already experimenting with FOP labels. Mars Chocolate NA has put FOP icons on many of their candy products, as requests for this information has come from Europe and other countries as well. Shumow indicated the American Beverage Association has created the "clear on calories" initiative, a voluntary FOP labeling program that the soda manufacturing giants have begun implementing on products up to 20-ounce servings. Shumow hears other categories are also talking about FOP labels. She cites the Grocery Marketers Association which is working on the Facts Up Front labeling program. "They're program recommends not only calories, but saturated fat, sugars, and sodium," added Shumow.

While Shumow hadn't heard an exact date for the final rule, her contact at the FDA said the implementation period for whatever the final rule is would be significant. Shumow believes that means the industry will be given a year or two to come into compliance.   

FOP labeling was mentioned in comments to the FDA as well. It would be a way of keeping the disclosure inexpensive, consistent, and across multiple channels, not singling out only vending products as opposed to convenience and grocery store products.  

Operators should be advised the rule was not intended for manufacturers,  so the vending operators would still have a responsibility to make sure the products where positioned to allow the FOP label to be read. Also, it would mean operators could only use product that had FOP labels. 

While the FDA deliberates, the industry has become proactive offering operators solutions. Whether its technology or packaging changes, calorie disclosure is in vending's future. 

For more information, contact:

Food And Drug Administration, 888-463-6332, www.regulations.gov

National Automatic Merchandising Association, 626-229-0900, www.vending.org

National Confectioners Association, 202-534-1440, www.candyusa.com

U-Select-It, 800-247-8709, www.uselectit.com

Vendors Exchange Interntional Inc., 216-432-1800, www.veii.com