And vending should be allowed to operate under „„(II) CONTENTS.—In promulgating regulations, the Secretary shall—„„(aa) consider standardization of recipes and methods of preparation, reasonable variation in serving size and formulation of menu items, space on menus and menu boards, inadvertent human error, training of food service workers, variations in ingredients, and other factors, as the Secretary determines;”
Vending operators are in the food service industry. They operate in a similar manner to restaurants, particularly when stocking fresh sandwiches, salads and fruits. Vending must be provided the same “reasonable variations” and “inadvertent human error” in the preparation or stocking of fresh food for vending machines.
4. The FDA must provide legal protection for minor and inadvertent mistakes in calorie disclosure, due to mistakes in stocking the machine. Many of the members of NAMA are blind or seeing impaired since we partner with many vending operators who are involved in vending through the federal Randolph-Sheppard program. In addition, our industry, as a retailer, understands the important need to accommodate all customers, including the visually impaired.
Section 4025 recognizes that there may be some “inadvertent human error” in chain restaurants when items are prepared, and calorie information is displayed. NAMA argues that this same allowance should be provided to vending operators. Human error will occur in the stocking of machines, where different snacks could be placed in the same coil or stack.
Section 4015 also recognizes that there will be some “variations of ingredients” for chain restaurants. Since some fresh food, such as fresh sandwiches, salads and fruit will have varying calorie counts, vending rules must be written to allow for such differences.
Vending operators should not be held legally liable for minor, inadvertent and incidental discrepancies in disclosure of calories. There should be no redress for labeling errors due to individual inadvertent negligence unless such negligence rises to the level of gross negligence.
As mentioned above, the industry also has a wide variety of machines including drop cup machines, machines that sell fresh produce and even machines which make fresh pizza, popcorn and cotton candy. Any rules written by the FDA must provide explicit exemptions for “reasonable variation in serving size,” “inadvertent human error” and “variations in ingredients.” All of these items will occur in vending.