By Ricardo Carvajal –
In tandem with its menu labeling final rule (see our prior posting here), FDA published a final rule that sets out requirements for calorie declaration for foods sold from certain vending machines. In certain respects, the final rule is broader in scope than the proposed rule, but in other respects, the rule has also been made more flexible. Below is a summary of some of the changes or clarifications that caught our eye:
- The rule’s requirements apply to dietary supplements sold in vending machines because these are articles of food within the meaning of section 201(f) of the FD&C Act.
- Foods that come in small packages, or that contain insignificant nutrient or caloric content, are not exempt.
- Vending machines without a selection button, such as bulk vending machines that dispense nuts by use of a crank, are not exempt.
- Calories must be provided for the article of food as vended – including any condiments bundled with the article.
- There is no provision for declaration of calorie ranges for foods that come in different varieties or flavors (as with fresh coffee); rather, calories can be declared for each option offered or for all final vended products.
- A prospective purchaser need not be able to view the entire nutrition facts panel – the calories, serving size, and servings per container will do.
- Articles of food dispensed as part of a game or other non-food related activity are exempt.
One change is so significant as to be worthy of special mention, and that is the change in the effective date from 1 year from the date of publication to 2 years – a change that will be welcome news to both vending machine operators and their suppliers. Additional information on the vending machine rule (and the companion menu labeling rule) is available here.