Regulatory Changes impacting the Retail Industry

Regulatory Changes impacting the Retail Industry

June 24, 2015
Retail Industry Insights

by RDBA Executive Director Annette Maggi, MS, RDN, LD, FAND

There are two major regulations in play with significant impact on the retail grocery business. This article provides an update on these regulations.

Menu Labeling
With a required compliance date of December 1, 2015, we are now less than six months out from required menu labeling on foods ready for consumption and sold in retailers with at least 20 outlets. Many retailers have not yet made significant progress towards compliance with this regulation, and some anticipate the deadline will be extended. Stephanie Barnes, regulatory counsel for the Food Marketing Institute is optimistic that the December 1 date will be extended by at least a year. "We are halfway through the compliance period, and the industry does not have the guidance they need from the FDA," Stephanie comments. Barnes indicated FMI has been working with FDA to address many of the outstanding questions and concerns under the final regulations and has been urging the FDA to extend the compliance date to Dec. 1, 2016 to allow companies adequate time to comply with the final rules. 

Barnes indicates the retail industry is awaiting guidance from the FDA on a myriad of questions that still exist. For example, is labeling required on prepared foods that require reheating (think cold lasagna portions or cold, baked chicken breasts) and multi-serve items that are eaten over a period of time vs. eaten now (think a pound container of pasta salad sold by weight vs. a pre-portioned single serve package of the same salad sold as a grab-and-go item). Where is FDA drawing this line? The industry also seeks clarity on where the FDA can provide flexibility in labeling for supermarkets. 

As there is no timeframe within which FDA might announce an extension, and many experts argue that the current administration will push hard to keep the 2015 compliance date, retailers should definitely move forward with implementation of menu labeling on impacted items.

RDBA insights: As previously discussed, menu labeling provides an opportunity for retail RDs to expand their scope and influence, and lead a cross functional team to accomplish an important retail goal. Once calorie and nutrition information is available, better-for-you options in prepared foods can be tied into health and wellness programs. RDs can also partner with key department heads and suppliers to reformulate to offer healthier options in prepared foods.

GRAS Status of PHOs Revoked
On June 16th, the FDA announced that the generally recognized as safe (GRAS) status of partially hydrogenated oils (PHOs) is being revoked with an effective date of June 16, 2018. According to the FDA, there is no longer consensus amongst qualified experts that trans fat from PHOs is safe for human consumption.  

This ban does not apply to naturally-occurring sources of trans fat from ruminant animals and dairy fats (think beef steaks and ice cream).  In their documents, FDA indicates that avoiding all trans fat from natural sources would result in undesirable effects.

FDA acknowledges that trans fat consumption dropped from 4.6 grams per day per person (g/d/p) from 2003 to 2010, and then to 1.0 g/d/p by 2012. While the food industry has argued that there is no additional benefit to public health in dropping artificial trans fat intake to zero, modeling presented by the FDA indicates as many as 58,000 cases of coronary heart disease could be prevented each year with the change in GRAS status of PHOs. 

There is concern in the industry that three years is not enough time to remove all PHOs from the food supply. Cakes, frostings, candy fillings, gum, and snack bars are at issue as are lesser ingredients used in foods such as anti-caking and pan release agents, emulsifiers, flavors and colors. The oil seed industry has indicated it will take 18 months to get seed in the ground to develop oils that can replace the functionality of trans fat, and then product development and testing will be required to verify the use of these potential PHO replacements. In total, this process will be longer than three years.

RDBA insights: Retail RDs can leverage their communication skills with customers, internal colleagues and the media to educate on the PHO ban. As the compliance date is three years away, it will be essential to manage constituencies' expectations on the removal of trans fat from foods.