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May 5, 2017
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by Brian Gregg

The Food and Drug Administration (FDA) has extended the compliance date for the final rule requiring disclosure of certain nutrition information for standard menu items in certain restaurants and retail food establishments. In the Federal Register of December 30, 2016, it stated that the compliance date for the final rule would be May 5, 2017. On May 4, the FDA issued guidance that the compliance date has been moved to May 7, 2018. The FDA indicates it has taken this action to enable it to consider how it might further reduce the regulatory burden or increase flexibility while continuing to achieve its regulatory objectives under the Trump Administration’s policies.  Specifically, the FDA indicates that it has taken this action “consistent with Executive Orders 13777, 13771, and 13563, as well as in response to the diverse and complex set of stakeholders affected by the rule and continued, numerous, and fundamental questions they raise regarding the final rule and its implementation.”

The FDA also seeks additional comments from interested parties which must be submitted within 60 days.  The FDA seeks comments on how it might further reduce the regulatory burden or increase flexibility while continuing to achieve its regulatory objectives to provide consumers with nutrition information so that they can make informed choices for themselves and their families.  In particular, the FDA desires comments with respect to:

1. Calorie disclosure signage for self-service foods, including buffets and grab-and-go foods;
2. Methods for providing calorie disclosure information other than on the menu itself, including how different kinds of retailers might use different methods; and
3. Criteria for distinguishing between menus and other information presented to the consumer.

The new rules that would have taken effect on May 5th would require restaurants and retail food establishments with more than 20 locations to disclose the caloric value and other nutrition information for standard menu items, including beverages (which also includes alcoholic beverages).  In particular, the final rule:

• Defines terms, including terms that describe criteria for determining whether an establishment is subject to the rule;
• Establishes which foods are subject to the nutrition labeling requirements and which foods are not subject to these requirements;
• Requires that calories for standard menu items be declared on menus and menu boards that list such foods for sale;
• Requires that calories for standard menu items that are self-service or on display be declared on signs adjacent to such foods;
• Requires that written nutrition information for standard menu items be available to consumers who ask to see it;
• Requires, on menus and menu boards, a succinct statement concerning suggested daily caloric intake (succinct statement), designed to help the public understand the significance of the calorie declarations;
• Requires, on menus and menu boards, a statement regarding the availability of the written nutrition information (statement of availability);
• Establishes requirements for determination of nutrient content of standard menu items;
• Establishes requirements for substantiation of nutrient content determined for standard menu items, including requirements for records that a covered establishment must make available to FDA within a reasonable period of time upon request; and
• Establishes terms and conditions under which restaurants and similar retail food establishments not otherwise subject to the rule could elect to be subject to the requirements by registering with FDA.

Because the Final Rule was to take effect just a day after the latest delay was announced, many restaurants have already complied with the requirements.  Now the FDA rules may change or may be delayed further.  With no federal requirements in place, restaurants and other food service establishments should continue to monitor increasingly common state and municipal laws that dictate menu labeling practices.  It appears that the restaurant and food service industry will continue to be forced to navigate a patchwork of different labeling laws.

Attorneys in the McNees Wallace and Nurick Food & Beverage Practice Group advise on the full spectrum of issues facing the food and beverage industries.  Learn more here. 

© 2017 McNees Wallace & Nurick LLC
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