WASHINGTON — The National Association of Convenience Stores (NACS) hailed legislation introduced today in the U.S. Senate, the Common Sense Nutrition Disclosure Act (S. 2217), as a thoughtful approach to providing the necessary flexibility and understanding of convenience store foodservice operations.

A provision included in the Patient Protection & Affordable Care Act, signed into law in March 2010, calls for a national, uniform nutrition-disclosure standard for foodservice establishments. Regulations implementing this provision, finalized by the U.S. Food & Drug Administration (FDA) in November 2014, create rigid requirements that pose an unreasonable burden on convenience stores.

The FDA’s rules, set to take effect on Dec. 1, 2016, do not recognize how convenience stores, grocery stores, delivery operations and other approaches to foodservice are different than restaurants. Further, the intent of law was designed for big chain restaurants with simple, standardized menus at all locations and Congress’s intent was to ensure those menus provide clear, understandable nutrition information.

The bipartisan legislation introduced October 29 by U.S. Senators Roy Blunt (R-Mo.) and Angus King (I-Maine) codifies a less-burdensome approach to menu labeling. For those convenience stores that would be covered by federal menu-labeling requirements, the Common Sense Nutrition Disclosure Act provides more flexibility with compliance.

The legislation also removes the potential for criminal penalties if a store or restaurant gives some customers larger servings than they expected. The Senate bill maintains but modifies FDA’s menu-labeling regulations to provide nutritional information to customers in a more practical format, and to protect small businesses from overly burdensome costs and penalties.

“Convenience stores and their foodservice offerings vary greatly—even those that are part of the same chain—based largely on their location and customer base. S. 2217 provides retailers with the flexibility they need to communicate calorie nutrition information, and provides needed protections from unnecessary potential felony penalties on retail employees,” said Lyle Beckwith, senior vice president of government relations at NACS. “This legislation would also allow FDA to meet the objectives of the menu-labeling law without unnecessarily burdening retailers and confusing customers.”

The Society of Independent Gasoline Marketers of America (SIGMA), applauded the introduction of S. 2217. “SIGMA believes the legislation will provide the much-needed flexibility to accommodate the business practices of fuel marketers nationwide,” it said.

Problematically, FDA’s regulations implementing the law would create a one-standard-fits-all model that does not take into consideration the unique nature of convenience and retail fuel establishments. The rules, for example, would require multiple menus throughout a store and would punish errors in calorie count, including errors made in good faith, with criminal penalties. Furthermore, while the rule includes an exemption for operations with fewer than 20 locations, the exemption does not apply to franchisees or marketers who operate an independent business. 

The new legislation would allow the convenience-store and retail fuel industry to provide nutritional information to their customers in a manner that suits the nature of the business. For example, the legislation would allow retailers to place all nutritional information on a menu board in one location, versus in various locations around the store. Retailers would be able to choose one of several methods to provide helpful calorie information, which is especially important for made-to-order items.

The legislation maintains the FDA’s objective to provide customers with information they can use to make smart food choices, but it will protect small businesses from unnecessary costs and risks.

“This legislation is critical in that it provides fuel retailers with flexibility to give consumers the health information they want while making regulatory requirements manageable,” said Ryan McNutt, CEO of SIGMA.

Companion legislation (HR 2017) to S. 2217 was introduced in the House in April and has 89 co-sponsors to date.