2. The FDA must permit options for posting calorie information that allows multiple products to be placed in the same vending coils or stacks. Vending machines are refilled or restocked in regular intervals ranging from several times a week, to once every 5 weeks. The restocking of the machine depends on the sales of products and product expiration dates. A route driver is the individual who refills the vending machines and generally is paid a salary in addition to a commission based on sales of the vending machines. To maximize sales and potential commission, a route driver wants to fully stock a vending machine. So a route driver will, on occasion, stock a particular coil with several different beverages or snacks, depending on what products are available. It is very possible that one vending machine coil or row could have two different types of chips or candy or pastries with very different calorie counts. It?s not unusual for a route driver, who wants to have a completely full and stocked machine to place chips in the front of a row and pastries in the back.
In addition, under the Randolph-Sheppard Act, blind and vision impaired individuals receive preference to operate vending on government properties. So a number of vending operators are blind or seeing impaired. For this reason, it is possible that a Randolph-Sheppard vending operator may place different snacks in the same row due to limited visual recognition of products and the similarity of product packaging.
Therefore, the FDA must not write regulations which will limit the way operators stock machines. Any rule which requires that all products in a row, column or stack have the same calorie count will not be practical. A menu for a bank of vending machines would allow different products to be stocked in the machine, would provide customer information, and would not harm blind vendors.
3. The FDA must allow vending operators to have the same technical allowances as chain restaurants. Section 4205 of the Patient Protection and Affordable Care Act of 2010, provides directions to “chain restaurants” on how they can operate under this legislative scheme. Unfortunately, vending operators may not have similar clarity. NAMA argues that there are sections of 4205 related to vending, and particular fresh food vending, which should be applied. For example, vending should be allowed to operate under „„(iv) REASONABLE BASIS.—For the purposes of this clause, a restaurant or similar retail food establishment shall have a reasonable basis for its nutrient content disclosures, including nutrient databases, cookbooks, laboratory analyses, and other reasonable means, as described in section 101.10 of title 21, Code of Federal Regulations (or any successor regulation) or in a related guidance of the Food and Drug Administration.” Many vending operators utilize fresh made sandwiches. In this case, those vending operators, commissaries or food producers should be allowed to calculate calorie content based on “nutrient databases, cookbooks, laboratory analyses, and other reasonable means.”