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FDA Requirements for Vending Machines

EO Guidance Document #
FNS-GD-2016-0010
FNS Document #
SP28 CACFP09 SFSP11-2016
Resource type
Policy Memos
Guidance Documents
Resource Materials
PDF Icon Policy Memo (144.31 KB)
DATE: March 2, 2016
POLICY MEMO: SP 28 – 2016, CACFP 09 – 2016, SFSP 11 - 2016
SUBJECT: Food and Drug Administration Requirements for Vending Machines
TO: Regional Directors
Special Nutrition Programs
All Regions
State Directors
Child Nutrition Programs
All States

On Dec. 1, 2014, the U.S. Department of Health and Human Services, Food and Drug Administration (FDA) published the final rule, Food Labeling; Calorie Labeling of Articles of Food in Vending Machines, in the Federal Register. The purpose of this FDA rule is to provide consumers with clear and consistent nutrition information, allowing them to make informed and healthful dietary choices when purchasing items from vending machines. Covered vending machine operators must comply with this regulation by Dec. 1, 2016.

This memorandum is intended to inform Child Nutrition Program (CNP) operators about FDA’s vending machine regulation. The Food and Nutrition Service (FNS) cannot predict how many CNP operators will be required to comply with this rule. However, there are no specific exemptions for CNP operators. Therefore, local educational agencies, school food authorities, and individual schools participating in the National School Lunch Program and Child and Adult Care Food Program institutions or Summer Food Service Program sponsors covered by the FDA final rule must comply by Dec. 1, 2016. Please note, this memorandum is not intended to explain the FDA regulation in detail or to be used by CNP operators as a resource to determine if they are required to comply. Additionally, there are no FNS requirements for state agencies or CNP operators to monitor this FDA requirement.

The FDA vending machine final rule requires covered vending machine operators who own or operate 20 or more vending machines to disclose calorie information for foods (or beverages) sold from their machines. FDA defines a covered vending machine operator as a person or entity that:

“Controls or directs the function of the vending machine, including deciding which articles of food are sold from the vending machine or the placement of the articles of food within the vending machine, and is compensated for the control or direction of the function of the vending machine.”

The FDA regulation requires that calorie declarations disclosed by covered vending machine operators be clear, conspicuous, and prominently placed. Calorie information may be disclosed on a sign (e.g., small placard, sticker, or poster) near the food item or selection button.  Electronic or digital displays also may be used. If the consumer can clearly examine the Nutrition Facts label of a food item sold from the vending machine before purchase, or the nutrition information is otherwise visible at the point of purchase (e.g., through front-of package calorie labeling), then no further calorie information is required. FDA is working with the vending and packaging industry to develop front-of-package nutrition labels, and expects many covered vending machine operators will benefit from this exception.

Covered vending machine operators also must disclose their contact information on the machine to enable the FDA to contact operators for enforcement purposes. Failure to comply with the FDA regulation will render covered vending machine food misbranded under the Federal Food, Drug, and Cosmetic Act (FFDCA). During the first year of implementation, FDA will focus primarily on education and outreach. FDA is working on additional guidance including monitoring and oversight requirements which will be made available through the FDA website.

CNP operators with vending machines not covered by the new FDA regulation are encouraged to voluntarily comply. Making nutrition information available for items sold through vending machines may help children and adults make more informed choices about the foods they select.  CNP operators may already have nutritional information on hand for reimbursable meals or other food items sold a la carte through vending machines.

CNP operators also may wish to incorporate requirements of this FDA regulation into their vending machine contracts in order to ensure that covered vending machine operators contracted by the CNP operator include the calorie information when it is required. Please note that items sold to students on campus throughout the school day, including those sold in vending machines, must comply with Smart Snacks in School requirements and other local wellness policy requirements. Please visit http://www.fns.usda.gov/healthierschoolday/tools-schools-focusingsmart-snacks, for details about the Smart Snacks requirements.
 
Additional details about the FDA final rule may be found online at https://www.federalregister.gov/articles/2014/12/01/2014-27834/food-labeling-calorie-labelingof-articles-of-food-in-vending-machines. More information about the requirements may be found on the FDA Web site resource, Vending Machines Labeling Requirements At-A-Glance at
http://www.fda.gov/Food/IngredientsPackagingLabeling/LabelingNutrition/ucm248732.htm#vending.

State agencies are reminded to distribute this memorandum to all Program operators immediately.  As noted above, FNS is distributing this memorandum for informational purposes. All questions about the vending machine labeling requirements should be directed to FDA by email at 
CalorieLabelingVend@fda.hhs.gov with a copy sent to the FNS regional office.

Angela M. Kline
Director
Policy & Program Development Division
Child Nutrition Programs

03/02/2016

The contents of this guidance document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.