II 

108TH CONGRESS 

2D SESSION S. 2108

To amend the Federal Food, Drug, and Cosmetic Act to ensure that consumers receive information about the nutritional content of restaurant 

food and vending machine food. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 24, 2004

Mr. HARKIN (for himself, Mr. KENNEDY, Mr. LIEBERMAN, and Ms. CANTWELL) introduced the following bill; which was read twice and referred 

to the Committee on Health, Education, Labor, and Pensions 

A BILL

To amend the Federal Food, Drug, and Cosmetic Act to 

ensure that consumers receive information about the nutritional content of restaurant food and vending machine 

food.

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 ‘‘Menu Education and 

5 Labeling Act’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds that— 

8 (1) research continues to reveal that— 
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1 (A) there is a strong link between diet and 

2 health; and 

3 (B) diet-related diseases start early in life; 

4 (2)(A) increased caloric intake is a key factor 

5 contributing to the alarming increase in obesity in 

6 the United States; 

7 (B) according to the Centers for Disease Control and Prevention, 2 8 ⁄3 of American adults are over9 weight or obese, and the rates of obesity have dou10 bled in children and tripled in teens since 1980; 

11 (C) obesity increases the risk of diabetes, heart 

12 disease, stroke, several types of cancer, and other 

13 health problems; and 

14 (D) the annual cost of obesity to families, busi15 nesses, and governments in the United States is 

16 $117,000,000,000; 

17 (3) over the past 2 decades, there has been a 

18 significant increase in the number of meals prepared 

or eaten outside the home, with an estimated 1 19 ⁄3 of 

20 calories and almost half of total food dollars being 

21 spent on food purchased from or eaten at res22 taurants and other food-service establishments; 

23 (4) while nutrition labeling is currently required 

24 on most processed foods, nutrition information is re-
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1 quired for restaurant food only if a nutrient content 

2 or health claim is made for a menu item; 

3 (5)(A) about 75 percent of adults report using 

4 food labels on packaged foods, which are required by 

5 subsections (q) and (r) of section 403 of the Federal 

6 Food, Drug, and Cosmetic Act (21 U.S.C. 343); and 

7 (B) the use of food labels is associated with eat8 ing more healthful diets, and approximately half of 

9 people report that the nutrition information on food 

10 labels has caused them to change their minds about 

11 buying a food product; 

12 (6)(A) it is difficult for consumers to limit their 

13 intake of calories at restaurants, given the limited 

14 availability of nutrition information and the popular 

15 practice of many restaurants of providing foods in 

16 larger-than-standard servings and super-sized por17 tions; and 

18 (B) studies show that people eat greater quan19 tities of food when they are served more; 

20 (7)(A) available information suggests that con21 sumers would like to be provided nutritional infor22 mation at restaurants; and 

23 (B) specifically, studies show that consumers 

24 would like nutrition information to be provided at 

25 the time of ordering their food at a restaurant, at 
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1 the point of the sale, so as to enable consumers to 

2 make an educated decision on what to order; and 

3 (8) a call to action from the Surgeon General 

4 and Secretary of Health and Human Services rec5 ommends that, to reduce the incidence of obesity, 

6 there be increased availability of nutrition informa7 tion for foods eaten and prepared away from home. 

8 SEC. 3. NUTRITION LABELING OF RESTAURANT FOODS. 

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

10 Cosmetic Act (21 U.S.C. 343(q)(5)(A)(i)) is amended— 

11 (1) in clause (A)— 

12 (A) in subclause (i), by inserting ‘‘except 

13 as provided in clauses (H) and (I),’’ before 

14 ‘‘which’’ the first place it appears; and 

15 (B) in subclause (ii), by inserting ‘‘except 

16 as provided in clauses (H) and (I),’’ before 

17 ‘‘which’’ the first place it appears; and 

18 (2) by adding at the end the following: 

19 ‘‘(H) RESTAURANTS AND RETAIL FOOD ESTABLISH20 MENTS.— 

21 ‘‘(i) IN GENERAL.—Except for food described in 

22 subclause (iii), in the case of food that— 

23 ‘‘(I) is served in a restaurant or similar re24 tail food establishment; or 
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1 ‘‘(II) is processed and prepared primarily 

2 in a retail establishment; 

3 that is part of a chain with 20 or more locations 

4 doing business under the same trade name (regard5 less of the type of ownership of the locations), the 

6 restaurant of the establishment shall disclose the in7 formation described in subclause (ii). 

8 ‘‘(ii) INFORMATION REQUIRED TO BE DIS9 CLOSED.—Except as provided in clause (iii), the es10 tablishment shall disclose— 

11 ‘‘(I)(aa) in a statement adjacent to the 

12 name of the food on any menu listing the food 

13 for sale, or by any other means approved by the 

14 Secretary, the number of calories, grams of 

15 saturated fat plus trans fat, and milligrams of 

16 sodium contained in a serving of the food, as 

17 offered for sale, in a clear and conspicuous 

18 manner; and 

19 ‘‘(bb) information, specified by the Sec20 retary by regulation, designed to enable the 

21 public to understand, in the context of a total 

22 daily diet, the significance of the nutrition in23 formation that is provided; and 

24 ‘‘(II) in a statement adjacent to the name 

25 of the food on any menu board or other sign
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1 listing the food for sale, or by any other means 

2 approved by the Secretary, the number of cal3 ories contained in a serving of the food, as of4 fered for sale, in a clear and conspicuous man5 ner. 

6 ‘‘(iii) NONAPPLICABILITY TO CERTAIN FOOD.—

7 This clause does not apply to— 

8 ‘‘(I) items that are not listed on a menu or 

9 menu board (such as condiments, other items 

10 placed on the table or counter for general use, 

11 and items from salad bars or other self-service 

12 facilities); or 

13 ‘‘(II) daily specials, temporary menu items, 

14 or other irregular menu items, as specified by 

15 the Secretary by regulation. 

16 ‘‘(iv) SELF-SERVICE FACILITIES.— 

17 ‘‘(I) IN GENERAL.—In the case of food 

18 sold at a salad bar, buffet line, cafeteria line, or 

19 similar self-service facility, a restaurant or 

20 other establishment shall place a sign that lists 

21 calories per standard serving adjacent to the 

22 name of each food offered. 

23 ‘‘(II) VENDING MACHINES.—In the case of 

24 an article of food sold from a vending machine 

25 or other arrangement that does not permit a 
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1 prospective purchaser to examine the article so 

2 as to be able to read a statement affixed to the 

3 article as required under subclause (I) before 

4 purchasing the article, a restaurant or other es5 tablishment (or, in the case of a vending ma6 chine that is owned and operated by a vending 

7 machine operator, the vending machine oper8 ator) shall provide a conspicuous sign, in close 

9 proximity to the article, identifying the food 

10 and including a statement disclosing the num11 ber of calories contained in the article. 

12 ‘‘(v) VOLUNTARY PROVISION OF NUTRITION IN13 FORMATION; STATE REGULATION OF NUTRITION IN14 FORMATION FOR RESTAURANT FOOD.— 

15 ‘‘(I) RETAIL FOOD ESTABLISHMENTS.—

16 Nothing in this clause precludes a restaurant or 

17 similar retail food establishment from providing 

18 additional nutrition information, voluntarily, if 

19 the information complies with the nutrition la20 beling requirements contained in this subpara21 graph. 

22 ‘‘(II) STATE OR LOCAL REQUIREMENTS.—

23 Nothing in this clause precludes a State or po24 litical subdivision of a State from requiring that 

25 a restaurant or similar food establishment pro-
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1 vide nutrition information in addition to that 

2 required under this clause. 

3 ‘‘(vi) REGULATIONS.— 

4 ‘‘(I) PROPOSED REGULATION.—Not later 

5 than 1 year after the date of enactment of this 

6 clause, the Secretary shall promulgate proposed 

7 regulations to carry out this clause. 

8 ‘‘(II) CONTENTS.—The regulations shall 

9 allow for the variations in serving sizes and in 

10 food preparation that can reasonably be ex11 pected to result from inadvertent human error, 

12 training of food service workers, and other fac13 tors. 

14 ‘‘(III) FINAL REGULATIONS.—Not later 

15 than 2 years after the date of enactment of this 

16 clause, the Secretary shall promulgate final reg17 ulations to implement this clause. 

18 ‘‘(IV) FAILURE TO PROMULGATE FINAL

19 REGULATIONS BY REQUIRED DATE.—If the Sec20 retary does not promulgate final regulations 

21 under item (III) by the date that is 2 years 

22 after the date of enactment of this clause— 

23 ‘‘(aa) the proposed regulations issued 

24 in accordance with item (I) shall become 
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1 effective as the final regulations on the day 

2 after that date; and 

3 ‘‘(bb) the Secretary shall publish in 

4 the Federal Register notice of the final 

5 regulations. 

6 ‘‘(I) VENDING MACHINES.— 

7 ‘‘(i) IN GENERAL.—In the case of an article of 

8 food sold from a vending machine that— 

9 ‘‘(I) does not permit a prospective pur10 chaser to examine the article so as to be able 

11 to read a statement affixed to the article before 

12 purchasing the article; and 

13 ‘‘(II) is operated by a person that is en14 gaged in the business of owning and operating 

15 20 or more vending machines; 

16 the vending machine operator shall provide a con17 spicuous sign, in close proximity to the article, iden18 tifying the food and including a statement disclosing 

19 the number of calories contained in the article. 

20 ‘‘(ii) VOLUNTARY PROVISION OF NUTRITION IN21 FORMATION; STATE REGULATION OF NUTRITION IN22 FORMATION FOR VENDING MACHINES.— 

23 ‘‘(I) VENDING MACHINE OPERATORS.—

24 Nothing in this clause precludes a vending ma25 chine operator from providing additional nutri-
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1 tion information, voluntarily, if the information 

2 complies with the nutrition labeling require3 ments contained in this subparagraph. 

4 ‘‘(II) STATE OR LOCAL REQUIREMENTS.—

5 Nothing in this title precludes a State or polit6 ical subdivision of a State from requiring that 

7 a vending machine operator provide nutrition 

8 information in addition to that required under 

9 this clause. 

10 ‘‘(iii) REGULATIONS.— 

11 ‘‘(I) PROPOSED REGULATION.—Not later 

12 than 1 year after the date of enactment of this 

13 clause, the Secretary shall promulgate proposed 

14 regulations to carry out this clause. 

15 ‘‘(II) FINAL REGULATIONS.—Not later 

16 than 2 years after the date of enactment of this 

17 clause, the Secretary shall promulgate final reg18 ulations to implement this clause. 

19 ‘‘(III) FAILURE TO PROMULGATE FINAL

20 REGULATIONS BY REQUIRED DATE.—If the Sec21 retary does not promulgate final regulations 

22 under item (II) by the date that is 2 years after 

23 the date of enactment of this clause— 

24 ‘‘(aa) the proposed regulations issued 

25 in accordance with item (I) shall become 
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1 effective as the final regulations on the day 

2 after that date; and 

3 ‘‘(bb) the Secretary shall publish in 

4 the Federal Register notice of the final 

5 regulations.’’.

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