October 3, 2022

Volume XII, Number 276


October 03, 2022

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Three Ways to Deal with FDA Calorie Labeling Delay

On April 25, 2017, the U.S. Food and Drug Administration (FDA) again delayed the deadline for restaurants and grocery stores to implement new calorie labeling rules. Originally set for May 5, 2017, the agency pushed back the deadline a second time, now requiring compliance by May 2018.

However, the delay may have come a little too late. Delaying compliance less than 10 days before the deadline provides little help to businesses that have already worked to comply. And uncertainty still remains as to what the labeling rules will be when compliance is required.

So, at this point, those affected by the labelling rules are likely considering three options:

1. Disclosing as originally planned.

Businesses don’t want to waste the time and money already spent on complying. Those that were near ready might consider finishing right away. Some companies that were prepared to comply ignored the FDA’s delay and went ahead with disclosing the calorie content on their menus.

Doing so may have a bonus: building trust with customers. Customers may like the transparency of businesses that post calorie information without the FDA requiring it. Also, when customers see the information at some businesses, they may start to expect it at all businesses.

2. Rolling out the menu nutritional information.

As we wrote back in April, the calorie disclosure process takes a lot of time and money. Rather than incur the implementation costs all at once, businesses can use the next year to phase in their compliance with the law.

For example, restaurants could start by first sharing the calorie information for the most popular menu items. Or they could use it as a promotional opportunity, disclosing each week the calorie information for one menu item and offering a deal on that item. Consumer feedback could also play a role in the process, so businesses can be nimble in adjusting their strategy accordingly.

3. Waiting until the law has been finalized.

The push-back this year, combined with a new FDA Commissioner (Dr. Scott Gottlieb), leaves the future of the FDA menu labeling law murky. Some think the law may never go into effect, and food advocacy organizations have now proposed alternative menu labeling laws. Businesses that have not yet started the implementation process may want to backload the costs closer to next year’s deadline for compliance. This hedge avoids surprise while delaying costs.

For every business, the delay allows some breathing room. There is a range of options available to capitalize on the delay, depending on an individual business’s strategy and how competition in the market is responding. As calorie labeling become more common—even without the FDA mandate—businesses may use this as a way to show customers transparency.


© 2022 ArentFox Schiff LLPNational Law Review, Volume VII, Number 130

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The Schiff Hardin Product Liability and Mass Torts Group comprises 40 lawyers — in New York, Washington, D.C., Chicago, Atlanta and San Francisco — solely devoted to helping clients face bet-the-company litigation against some of the most well-financed and formidable plaintiffs’ lawyers in the United States. Our lawyers try and win cases in some of the most plaintiff-friendly and inhospitable jurisdictions in the country, and when our clients ask us to create an exit strategy, we are equally adept at negotiating cutting-edge solutions to eliminate product liability and...