Over the past several years, FDA has been in the process of implementing menu labeling provisions added to the Federal Food, Drug, and Cosmetic Act by the Affordable Care Act. Under the new requirements, restaurants or similar retail food establishments (in chains of 20 or more locations doing business under the same name and selling substantially similar menu items) must provide calorie and other nutrition information for standard menu items. The menu labeling requirements originally were scheduled to take effect on December 1, 2015. The compliance date has since been delayed until May 8, 2018.

On August 25, 2017, FDA Commissioner Scott Gottlieb issued a statement in support of the menu labeling rule and announced that additional guidance would be issued by the end of this year to provide further clarity on regulatory compliance obligations under the new requirements.

On the same day, New York City agreed to delay its local menu labeling requirements. More specifically, New York City has agreed not to fine or sanction businesses for alleged non-compliance with calorie and nutrient information menu-labeling requirements before the May 2018 compliance date established by FDA. The Food Marketing Institute (FMI), and the National Association of Convenience Stores (NACS) had sued New York City for the decision to enforce its own menu labeling law prior to the federal compliance date, but the trade associations have now settled the lawsuit.

In a statement praising the FDA Commissioner’s statement, the Center for Science in the Public Interest (CSPI), urged Congress to reject legislation aimed at providing flexibility to establishments subject to the menu labeling rule.  See previous blog coverage of this legislation here.