January 28, 2020

January 27, 2020

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Menu Labeling in the House: FDA Requirements

House passes bill to increase flexibility in FDA’s menu labeling requirements.

  • FDA has issued a final rule to implement the menu labeling provisions added to the Federal Food, Drug, and Cosmetic Act (FD&C 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 originally were scheduled to take effect on December 1, 2015, FDA extended the compliance date to December 1, 2016.  Then, as part of the omnibus spending legislation passed in December 2015, Congress further delayed FDA’s ability to enforce compliance with menu labeling requirements until one year after final guidance is published.  Despite the issuance of draft guidance and delays in implementation, many industry stakeholders have remained concerned about FDA’s requirements and how they apply to different food service models and food products.

  • On February 12, the House of Representatives passed H.R. 2017, the “Common Sense Nutrition Disclosure Act,” which is intended to give restaurants and retailers more flexibility to comply with FDA’s menu labeling requirements.  Specifically, the bill would:

    • permit the designation of a “primary” menu or menu board in a restaurant or similar retail establishment where all required nutrition information may be displayed;

    • clarify that ads are not menus or menu boards and thus do not need to bear nutrition labeling;

    • permit “reasonable” variations between nutrient content disclosures and actual nutrient content, such as variations in serving size, inadvertent human error in formulation or preparation of menu items, variations in ingredients, or “other reasonable variations”;

    • permit restaurants where most orders are placed remotely (e.g., pizza chains) to provide nutrition information via “a remote-access menu” (such as a menu available on the Internet), as opposed to needing to supply information on-site;

    • permit restaurants to provide nutrition information in a calories-per-serving format based on the number of servings reasonably believed to be in a “standard menu item” (e.g., on a “per slice” basis), as opposed to listing the number of calories in the whole item (e.g., a whole pizza or a whole cake);

    • permit the use of alternative disclosure methods (e.g., ranges, averages, individual labeling, or the labeling of one “preset standard build”) for standard menu items that come in different flavors, varieties, or combinations, but which are listed as a single menu item;

    • eliminate criminal penalties for menu violations;

    • give restaurants and similar retail establishments found to be in violation of the requirements 90 days to correct their error(s), penalty-free, after receiving notice of the violation(s) from FDA; and

    • bar private civil actions for violations of the FDA menu labeling requirements or similar requirements under state law.

  • The White House and consumer advocacy groups (such as the Center for Science in the Public Interest) oppose the bill, asserting that the additional flexibility would undermine the public health goals of the menu labeling requirements.  However, industry stakeholders view the bill as a welcome source of relief from what many view as FDA’s overly rigid, “one-size-fits-all” approach to menu labeling.  At this point, it is up to the Senate — and then, potentially up to the President’s veto power — to decide whether this bill ultimately will grant the industry the flexibility it seeks.

© 2020 Keller and Heckman LLP


About this Author

Keller and Heckman offers global food and drug services to its clients. Our comprehensive and extensive food and drug practice is one of the largest in the world. We promote, protect, and defend products made by the spectrum of industries regulated by the U.S. Food and Drug Administration (FDA), the European Commission and Member States authorities in the European Union (EU) and similar authorities throughout the world. The products we help get to market include foods, pharmaceuticals, medical devices, veterinary products, dietary supplements, and cosmetics. In addition...