II 

112TH CONGRESS 

2D SESSION S. 3574 

To amend section 403 of the Federal Food, Drug, and Cosmetic Act to 

improve and clarify certain disclosure requirements for restaurants, similar retail food establishments, and vending machines. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 19, 2012 

Mr. BLUNT (for himself, Mr. BARRASSO, Mr. BROWN of Massachusetts, Mr. 

COBURN, Mr. ENZI, Mr. COCHRAN, Mr. JOHANNS, Mr. BOOZMAN, and 

Mr. MORAN) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions 

A BILL 

To amend section 403 of the Federal Food, Drug, and Cosmetic Act to improve and clarify certain disclosure requirements for restaurants, similar retail food establishments, and vending machines. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Common Sense Nutri5 tion Disclosure Act of 2012’’. 


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1 SEC. 2. AMENDING CERTAIN DISCLOSURE REQUIREMENTS 

2 FOR RESTAURANTS, SIMILAR RETAIL FOOD 

3 ESTABLISHMENTS, AND VENDING MACHINES. 

4 Section 403(q)(5)(H) of the Federal Food, Drug and 

5 Cosmetic Act (21 U.S.C. 343(q)(5)(H)) is amended— 

6 (1) in subclause (ii)— 

7 (A) in item (I)(aa) by striking ‘‘the num8 ber of calories contained in the standard menu 

9 item, as usually prepared and offered for sale’’ 

10 and inserting ‘‘the number of calories contained 

11 in the whole product, or the number of servings 

12 and number of calories per serving, or the num13 ber of calories per the common unit division of 

14 the product, such as for a multi-serving item 

15 that is typically divided before presentation to 

16 the consumer’’; 

17 (B) in item (II)(aa), by striking ‘‘the num18 ber of calories contained in the standard menu 

19 item, as usually prepared and offered for sale’’ 

20 and inserting ‘‘the number of calories contained 

21 in the whole product, or the number of servings 

22 and number of calories per serving, or the num23 ber of calories per the common unit division of 

24 the product, such as for a multi-serving item 

25 that is typically divided before presentation to 

26 the consumer’’; and 


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1 (C) by adding at the end the following 

2 flush text: 

3 ‘‘In the case of restaurants or similar re4 tail food establishments where the majority 

5 of orders are placed by customers who are 

6 off-premises at the time such order is 

7 placed, the information required to be dis8 closed under this subclause may be pro9 vided by a remote-access menu, such as 

10 one available on the internet, instead of an 

11 on-premises menu.’’; 

12 (2) in subclause (iv)— 

13 (A) by striking ‘‘For the purposes of this 

14 clause,’’, inserting the following (and indenting 

15 the text that follows appropriately): 

16 ‘‘(I) IN GENERAL.—For the pur17 poses of this clause,’’; 

18 (B) by striking ‘‘and other reasonable 

19 means’’ and inserting ‘‘or other reasonable 

20 means’’; and 

21 (C) by adding at the end the following: 

22 ‘‘(II) REASONABLE BASIS DE23 FINED.—For purposes of this sub24 clause, with respect to a nutrient dis25 closure, the term ‘reasonable basis’ 


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1 means that the nutrient disclosure is 

2 within acceptable allowances for vari3 ation in nutrient content. Such ac4 ceptable allowances shall include al5 lowances for variation in serving size, 

6 inadvertent human error in formula7 tion of menu items, and variations in 

8 ingredients.’’; 

9 (3) in subclause (v)— 

10 (A) by inserting ‘‘contained in the whole 

11 product, or the number of servings and infor12 mation per serving, or the common unit division 

13 of the product, such as for a multi-serving item 

14 that is typically divided before presentation to 

15 the consumer,’’ before ‘‘that come in different 

16 flavors, varieties, or combinations,’’; 

17 (B) by striking ‘‘, through means deter18 mined by the Secretary, including ranges, aver19 ages, or other methods’’; and 

20 (C) by adding at the end, after the period, 

21 the following: ‘‘A restaurant or similar retail 

22 food establishment may determine and disclo23 sure such content by using any of the following 

24 methods: ranges, averages, individual labeling 

25 of flavors or components; or labeling of one preVerDate Mar 15 2010 21:10 Sep 24, 2012 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3574.IS S3574

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1 set standard build. In addition to such methods, 

2 the Secretary may allow the use of other meth3 ods, to be determined by the Secretary, for 

4 which there is a reasonable basis (as such term 

5 is used in subclause (iv).’’; and 

6 (4) in subclause (xi)— 

7 (A) in the heading, by striking ‘‘DEFINI8 TION’’ and inserting ‘‘DEFINITIONS’’; 

9 (B) by striking ‘‘clause, the term ‘menu’ ’’ 

10 and inserting the following (and indenting the 

11 text that follows appropriately): ‘‘clause: 

12 ‘‘(I) MENU; MENU BOARD.—The 

13 term ‘menu’ ’’; and 

14 (C) by adding at the end the following: 

15 ‘‘(II) PRESET STANDARD

16 BUILD.—The term ‘preset standard 

17 build’ means the finished version of a 

18 menu item most commonly ordered by 

19 consumers. 

20 ‘‘(III) RESTAURANT OR SIMILAR

21 RETAIL FOOD ESTABLISHMENT.—The 

22 term ‘restaurant or similar retail food 

23 establishment’ means a retail food es24 tablishment that derives more than 50 

25 percent of its total revenue from the 


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1 sale of food of the type described in 

2 subclause (i) or (ii) of clause (A).’’. 

Æ 


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