Operators that have 20 or more food vending machines in operation must display the caloric content of the items, but have some flexibility in the display, such as using an electronic display or stickers. The FDA’s draft guidance, Calorie Labeling of Articles of Food in Vending Machines and guidance, a Small Entity Compliance Guide, clarify that this rule does not apply to machines that dispense food as part of a game, such as a claw machine, but does cover dietary supplements. Calorie declarations must adhere to certain size and color requirements that may vary by product (Notice, 81 FR 54501, August 16, 2016; Notice, 81 FR 54499, August 16, 2016).
Vending display requirements. The Patient Protection and Affordable Care Act’s (ACA) (P.L. 111-148) section 4205 furthered the caloric and serving size food labeling requirements established by the Food, Drug, and Cosmetic Act (FDC Act). The FDC Act provided some exceptions from labeling requirements: food served in restaurants to be consumed immediately, food processed and prepared in a retail setting ready for consumption, and food sold in restaurants not for immediate consumption but not sold elsewhere. The ACA removed exemptions for restaurants, food establishments, and vending machine chains with at least 20 locations. The FDA’s Final rule (79 FR 71259) established the exact requirements for vending machine labeling (see Vending machine labeling requirements released with menu labeling rule, December 1, 2014).
Vending machine operators. The guidances state that covered operators under the rule are those who own or operate 20 or more vending machines, or have fewer than 20 but register to follow the rule. If an owner does not control the operation, the entity that is contracted to operate them is required to post the information. Most packaged foods have a nutrition facts label that will have the calorie information, but other resources may be used to obtain the necessary information. Foods that significantly vary in calorie content, such as fruit, require specific labeling in order not to be misleading. Drink machines that offer different options (adding cream and sugar to coffee and tea), must either declare the content for each item individually or each final product that can be created.
Display. Calorie content must be clearly and obviously displayed in a manner that allows a consumer to see the information before making a purchase. Operators are given flexibility in the way they meet the requirement. Vending machines with electronic displays can either show the actual product labeling or the number of calories, as long as it is displayed before the purchase is made. Alternatively, signs and stickers can be used. Signs can be in, on, or beside the machine. If a sign is next to the machine, the font size must allow the customer to read it under the typical conditions of purchase, and the information must be written in one color on a contrasting background. Declarations in or on the machine must not be smaller than the name of the food or price on the machine (whichever is smaller) and the colors must offer the same prominence for calorie content as the price and name display.
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