On August 15, 2016, FDA issued the "Draft Guidance, Calorie Labeling of Articles of Food in Vending Machines" and the "Small Entity Compliance Guide, Calorie Labeling of Articles of Food in Vending Machines" ("Guide") to help vending machine operators ("VMOs") and industry comply with the December 1, 2014, final rule, which requires operators with 20 or more machines to display the food products' calorie content at the point of purchase.
The draft guidance clarifies, among other things, that: (i) food manufacturers are not required to place calorie information on the articles of foods sold from vending machines; (ii) VMOs are not required to register with FDA to be subject to the rule but can do so voluntarily; (iii) owners or operators of less than 20 vending machines are not considered VMOs unless they voluntarily register to follow the rule; (iv) state and local licensing requirements for vending machine operations are not affected by the rule; and (v) when an owner of vending machines contracts their operation to a third party, such that the owner does not control or direct the function of the vending machine, including deciding which articles of food are sold from the machine or the placement of the articles of food within the vending machines, and is not compensated for the control or direction of the function of the vending machine, the third party, and not the owner, would be responsible for posting the calorie information. The guidance also mentions methods for displaying the calorie information, such as the use of images, stickers, or signs, and the format that can be used to display the required information.
In addition, the Guide directed to small operators provides information and examples beneficial to both small and regular VMOs. For instance, the Guide explains how and where the calorie declarations have to be placed, what and where contact information should be provided, and how to determine the calorie content for vending machine foods.
For compliance dates, please see our previous Jones Day Update.
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