Health Law Daily FDA turns page on restaurant menu labeling back another year
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Tuesday, May 2, 2017

FDA turns page on restaurant menu labeling back another year

The compliance date for a Final rule (79 FR 71156), issued December 1, 2014, requiring the disclosure of nutrition information for standard menu items in restaurants and retail food establishments is extended to May 7, 2018, under an FDA Interim Final rule. The compliance date extension extends the date more than a year from the original date: May 5, 2017. The FDA is delaying the compliance date to reduce regulatory burdens. The FDA published the Interim Final rule as an advance release on May 2, 2017. The document is set to be published in the Federal register on May 4, 2017.

Labeling. Section 4205 of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) imposes menu labeling requirements on restaurants and retail food establishments that are part of a chain with 20 or more locations, doing business under the same name, and offering for sale substantially the same menu items. The ACA requirements, laid out under the 2014 Final rule, mandate calorie and other nutrition information for standard menu items, including food on display and self-service food (see Finally final: FDA releases ACA mandated menu labeling requirements, December 1, 2014).

Delay. On December 18, 2015, the Consolidated Appropriations Act, 2016 (P.L. 114-113) delayed enforcement of the menu-labeling Final rule until the later of December 1, 2016, or the date that is one year after the date on which the FDA published a final guidance on the subject (see Changes to ACA requirements, COOL, cybersecurity, and more in Appropriations Act, December 21, 2015). On May 5, 2016, the FDA released Final guidance announcing enforcement of the menu-labeling Final rule would begin one year later, on May 5, 2017 (see Final menu labeling guide for restaurants issued, enforcement date set, May 5, 2016).

Flexibility. The FDA pushed the compliance date further—out to May 7, 2018—in response to stakeholder complaints that the 2014 Final rule is too burdensome. Specifically, retailers have identified concerns that the Final rule "lacks flexibility to permit them to provide meaningful nutrition information to consumers given their type of business and different operations." Additionally, the FDA belives it needs to provide further clarification to help stakeholder distinguish between a "menu" and advertising. The FDA emphasized the complexity of the 2014 Final rule, which the agency belives will impact approximately 298,600 covered establishments, organized under 2,130 chains.

Comments. To assist the FDA with reducing the regulatory burden, the agency requested stakeholders for suggested approaches to the following issues:

  1. calorie disclosure signage for self-service foods, including buffets and grab-and-go foods;
  2. methods for providing calorie disclosure information other than on the menu itself, including how different kinds of retailers might use different methods; and
  3. criteria for distinguishing between menus and other information presented to the consumer.

The FDA will accept comments until 60 days after the interim Final rule is published in the Federal Register.

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