As previously covered on this blog, 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. Although the menu labeling requirements were originally scheduled to take effect on December 1, 2015, enforcement was later delayed to December 1, 2016.  Then, due to a provision in the omnibus spending bill passed last December, enforcement was further delayed until one year after the issuance of final guidance on the menu labeling requirements.  On May 5, 2016, FDA published a notice of availability of the final guidance in the Federal Register in early May, and noted that the Agency intends to begin enforcing the menu labeling final rule one year thereafter (i.e., May 5, 2017).

Yesterday, FDA issued a constituent update, reiterating that FDA will not begin enforcing the final rule until May 5, 2017. Relatedly, California will be enforcing its own menu labeling regulations (identical to FDA’s) as of December 1, 2016.

Businesses may want to confirm whether other states or local jurisdictions are now or are about to enforce state or local requirements.  Covered entities should also be developing compliance strategies and familiarizing themselves with the final menu labeling rule and related guidance document in preparation for federal compliance by May 2017.