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YOUR SOURCE ON FOOD LITIGATION AND REGULATION

FDA issued a final rule on October 28 that revises the type size requirement for front-of-pack (FOP) calorie labeling for food sold from glass-front vending machines. This new rule amends FDA’s 2014 final rule, which requires vending machine operators that own or operate 20 or more vending machines to disclose calorie information for food sold from vending machines.

The 2014 final rule requires calorie labeling to be clear, conspicuous, and easily read on the article of food while in the vending machine, in a type size at least 50% of the size of the largest printed matter on the label. Following objections due to technical challenges faced by industry, FDA revised the type size requirement to reduce the regulatory burden on and increase flexibility for industry while ensuring that calorie information remains visible to consumers.

According to the new rule, the type size of FOP calorie labeling must now be at least 150% of the minimum required size of the net contents declaration on the package of the vended food. FDA emphasized that a type size “at least 150%” means that the calorie information may be larger than 150%, thus offering flexibility to manufacturers. The agency also affirmed that except for the new type size requirement, industry must also comply with the remaining requirements set out in the 2014 rule: (a) that purchasers can view the total number of calories for an article of food as sold at the point of purchase; and (b) that servings per container listed in the Nutrition Facts label must be visible to purchasers “without any obstruction.” The compliance date for the new type size requirement is July 1, 2021.

Lastly, in this new rule, FDA reiterated its intention to continue to exercise enforcement discretion with respect to gums, mints, and roll candy products sold in glass-front machines in packages that are too small to bear FOP labeling. The agency had previously declared that it would exercise its enforcement discretion for these products until at least January 1, 2020. In this new final rule, however, FDA announced that it would not pursue actions against vending machine operators that sell these products because it recognizes the challenges of adding compliant calorie information on packages that are too small to bear FOP labeling.