SUGGESTED TALKING POINTS FOR FDA COMMENTS ON NUTRITION LABELING
The Food and Drug Administration (FDA) has proposed regulations for nationwide menu labeling.1 The proposed rules require restaurants with 20 or more locations to post on menus the caloric content of items and make available upon request a listing of other nutritional information.2 As currently drafted, alcoholic beverages are exempted from the proposed regulations. The FDA is requesting comments on the proposed rules, specifically on alcohol. We offer several public health and legal arguments for the FDA to require restaurants to disclose information about the alcoholic beverages they serve.
Submit your comments here: http://www.regulations.gov/#!submitComment;D=FDA-2011-F-0172-0001
Alcoholic beverages contain calories and few nutrients. Exempting alcoholic beverages from menu labeling requirements may give the mistaken impression that an alcoholic beverage has either no calories, or fewer calories than other non-alcoholic beverages. Considering the myriad significant health and societal harms associated with alcohol consumption, this is especially problematic. Consumption of alcoholic beverages contributes a significant source of calories to the American diet and can facilitate food over-consumption and poor dietary choices.3 Thus, calories from alcohol can contribute to obesity, which in turn may be associated with a range of health problems including heart disease, Type 2 diabetes, hypertension, and stroke.
It is difficult for drinkers to calculate the number of calories contained in a specific alcoholic beverage on their own. The caloric content of an alcoholic beverage depends in part on the volume of alcohol it contains. As a result, the caloric content can vary between similar types of alcoholic beverages. Mixers can also add additional calories to alcoholic beverages. Because restaurants are in a better position to know the contents and serving size of an alcoholic beverage, it should be their responsibility to inform the consumer of the caloric content of a menu item.
Congress did not explicitly exclude alcoholic beverages from food labeling requirements. The FDA infers that it is prohibited from imposing nutrition disclosure requirements on alcoholic beverages because Congress may have considered the Alcohol and Tobacco Tax and Trade Bureau (TTB) the sole regulator of alcohol labels. The purpose of the Patient Protection and Affordable Care Act was to improve the health of all Americans. The nutrition disclosure requirements support this goal. Congress wants consumers to know the number of calories contained in food sold at restaurants, and since FDA recognizes alcoholic beverages as “food” it follows that the regulations should require the posting of nutritional information for alcoholic beverages.
The FDA has jurisdiction over the regulation of alcoholic beverages for health purposes. The FDA is responsible for protecting our health by regulating food safety and nutrition. Included in the definition of “food” are alcoholic beverages. In contrast, the purpose of the TTB is to collect alcohol taxes and ensure that alcohol companies comply with trade-related requirements. Just as the FDA demonstrated its clear jurisdiction last fall when the agency acted to remove caffeine from alcoholic beverages, so must the agency act to protect the health of Americans by including alcoholic beverages in its menu labeling requirements.
The TTB continually fails to act regarding the labeling of alcoholic beverages. The FDA justifies excluding alcoholic beverages because it asserts that the TTB will issue alcohol-labeling rules in the near future. In fact it has been nearly four years since the TTB published its proposed rules and many more years since such rules were requested by consumer groups. If recent history serves as any guide, it will likely be several years or more (if ever) before the TTB takes any action on alcohol labeling.
A good example of the TTB’s inability to protect the public’s health was the FDA’s action against caffeinated alcoholic beverages last fall. The TTB approved the nationwide sale of these dangerous products in the first place. It then remained silent for the most part, despite continued outcry by public health groups for several years. It was only thanks to the FDA taking leadership that these dangerous products came off the market, despite the TTB’s concurrent jurisdiction.
Exempting small alcohol producers can remove burden of obtaining nutritional information. The FDA is concerned that the disclosure requirements will represent a great burden for small brewers because the TTB does not already require alcoholic beverages to be labeled with nutritional information. Because a majority of beer and other alcoholic beverages are produced by large companies, exempting products produced by small producers will negate concerns about burdening regulation while having little to no effect on the effectiveness of the proposed regulations.
1. The notice of Proposed Rules on “Food Labeling: Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments” (FDA-2011-F-0172-0001) can be found at http://www.regulations.gov/#!documentDetail;D=FDA-2011-F-0172-0001.
2. The form must present in a clear and concise manner the total number of calories derived from any source, the total number of calories derived from fat, total fat , saturated fat, trans fat, cholesterol, sodium, total carbohydrate, dietary fiber, sugars, and protein. Proposed 21 CFR 101.11(2)(ii) et seq.