As previously covered on this blog, on May 4, 2017, FDA published an interim final rule that delays the compliance date for menu labeling requirements from May 5, 2017, until May 8, 2018 and invites comments for 60 days on the implementation of the menu labeling requirements.

Yesterday, the Center for Science in the Public Interest and the National Consumer League filed a complaint in U.S. district court in Washington, D.C. claiming that the delay of the menu labeling requirement is illegal and must be vacated.  The complaint specifically alleges that the Agency’s decision violated the Administrative Procedure Act (APA) by “departing from its prior interpretation of the Affordable Care Act and its prior conclusions about the importance of nutrition labeling without providing a rational explanation”, and without providing an opportunity for public comment.  The complaint further claims that FDA violated the APA by issuing a “Delay Rule” — a final agency action with legally binding effect — “without complying with mandatory rulemaking procedures, including advance notice and an opportunity for public comment before the Delay Rule took effect.” The plaintiffs are requesting that the court hold the Delay Rule to be “arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law, and to have been published without observance of legally required procedure, in violation of the APA.” The Plaintiffs are also seeking an order vacating the Delay Rule, and declaring that compliance with the menu labeling rule is required within 15 days of the court’s order.