Statement of Position

National Association of Theatre Owners

1705 N Street, N.W.
Washington, D.C. 20036

August 2, 2017

RIN 0910AG57; Docket No. FDA-2011-F-0172

Food Labeling; Nutrition Labeling of

Standard Menu Items in Restaurants
and Similar Retail Food Establishments;
Extension of Comment Period

John Fithian, President and CEO

Esther Baruh, Director, Government Relations
National Association of Theatre Owners
1705 N Street, N.W.
Washington, D.C. 20036
(202) 962-0054

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The National Association of Theatre Owners (NATO) is the nations largest trade body representing
motion picture exhibitors. Our members own and operate over 33,000 movie screens across the country.
NATO appreciates the opportunity to comment on the Food and Drug Administrations (FDA) Final Rule
Food Labeling; Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food
Establishments; Extension of Comment Period (RIN 0910AG57; Docket No. FDA-2011-F-0172).

1. FDA Statement on Moviegoers

In its Final Rule, the FDA elected to include movie theaters in its definition of similar retail food
establishments. In its explanation for including theaters, which had been exempted from labeling under
the Proposed Rule, the FDA claimed that movies attract sedentary people. The FDA provided no
source or study conducted of moviegoers and their habits to support this statement. NATO disagrees with
this claim and does not consider it a legitimate justification for requiring theaters to comply with the Final
Rule. Nevertheless, NATO has worked with FDA to clarify aspects of the Final Rule that apply to
theaters and to educate its membership on the requirements of the regulations, and will continue to do so.

2. Self-Serve Items

The requirement to post calorie counts should be limited to the menu or menu board. FDA has defined a
menu or menu board as the primary writing [] from which a customer makes an order selection.
By defining a menu or menu board as the primary writing of the food establishment, the FDA is mindful
of the laws goal to give customers nutritional information at the moment they are making a food order.
However, FDA has also required covered establishments to post calorie counts adjacent to self-service
items and food on display. This is redundant and burdensome. FDA should modify the Final Rule to
allow covered establishments to offer calorie information on the menu or menu board alone. Customers
have the opportunity to review nutritional information when viewing the menu or menu board and placing
an order, as the law intended. Further requiring covered establishments to post calorie counts at self-
service and food on display stands is duplicative and costly.

3. Flexibility in Nutritional Variation and Grace Period

The Final Rule ignores that variation in nutritional values can occur naturally in the course of preparing
food. Administering consistency across all employees and all equipment is a difficult task despite every
attempt to create uniformity in preparation processes. Differences in calorie counts can and will result
even when food preparers are following identical recipes and using the same measuring tools. For
example, two large bags of popcorn filled using the same scoop could contain different calorie counts,
because it is impossible to ensure that there is exactly the same number of kernels in each bag and that
each kernel is coated in precisely the same amount of oil. FDA should revise the Final Rule to explicitly
acknowledge that natural variation can occur and should not be subject to penalties. Similarly, the Final
Rule does not allow for a period of time in which to address any errors. FDA should revise the Final Rule
to give covered establishments a grace period in which to correct mislabeled calorie counts.

NATO thanks the FDA for its consideration and urges the FDA to modify the Final Rule to address the
concerns outlined above.

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