New guidance to pave way for menu nutrition labeling in May 2018

by Jay Sjerven
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Jay Sjerven

Scott Gottlieb, M.D., commissioner of the U.S. Food and Drug Administration, announced on Aug. 25 that the F.D.A. will provide additional guidance on menu nutrition labeling requirements by the end of the year, well in advance of the current compliance date for labeling, which is May 7, 2018.

Also on Aug. 25, and perhaps not coincidentally, an agreement was reached in the U.S. District Court for the Southern District of New York under which New York City agreed not to fine or sanction restaurants for noncompliance with menu nutrition labeling requirements it had said it would enforce because of the F.D.A.’s latest delay in requiring national menu nutrition labeling.

The F.D.A. on May 1, 2017, said it was extending the compliance date for its menu labeling requirements from May 5, 2017, to May 7, 2018, “for further consideration of what opportunities there may be to reduce costs and enhance the flexibility of these requirements beyond those reflected in the final rule.”

Subway menu board
Menu nutrition labeling has run quite a gauntlet since being mandated under the Affordable Care Act of 2010.
 

The F.D.A. then invited additional comments on the implementation of the menu nutrition labeling requirements. The comment period ended Aug. 2.

“This additional guidance will address concerns that were raised about challenges establishments faced in understanding how to meet their obligations under the new regulations,” Dr. Gottlieb said. “We have been diligently working to address the comments we received, and to establish a sustainable framework for enabling establishments to effectively meet the new menu labeling provisions.”

Barring further unforeseen delays, covered establishments, which were defined in the statute as “restaurants and similar retail food establishments that are part of a chain with 20 or more locations doing business under the same name and offering for sale substantially the same menu items,” must be in compliance with menu nutrition labeling requirements by May 7, 2018.

Menu nutrition labeling has run quite a gauntlet since being mandated under the Affordable Care Act of 2010.

On Dec. 1, 2014, the F.D.A. published in the Federal Register its final rule requiring the disclosure of certain nutrition information for standard menu items in covered restaurants and food establishments by Dec. 1, 2015.

On July 10, 2015, the F.D.A., “in response to requests from affected entities,” extended the compliance date for the final rule to Dec. 1, 2016.

A further delay resulted from the December 2015 enactment of the Consolidated Appropriations Act of 2016. The law stated no money may be provided to enforce the final rule until the later of Dec. 1, 2016, or one year after the F.D.A. published a Level 1 guidance with respect to nutrition labeling of standard menu items.

The F.D.A. announced on May 5, 2016, the availability of such a Level 1 guidance document and stated the enforcement of the final rule published on Dec. 1, 2014, would be May 5, 2017, which the agency, under the Trump administration, subsequently put off until May 7, 2018.

In his Aug. 25 statement, Dr. Gottlieb affirmed the importance of a national approach to menu labeling.

“Americans should not have to navigate variable information about the foods they eat when traveling from state to state — or city to city,” he said.

The New York City court case settled on Aug. 25 seemed to go a long way toward preventing the emergence of a patchwork of state and local menu nutrition labeling requirements in the period before the national requirements take effect in May 2018.

As background, in response to the F.D.A.’s May 2017 announcement that it would delay the compliance date for the national menu nutrition labeling requirements for a year, New York City Mayor Bill de Blasio announced the city would begin to enforce its own nutrition menu labeling requirements that were similar but not identical to the federal requirements and begin levying fines on those establishments found in violation effective Aug. 21, 2017.

The Food Marketing Institute, the National Restaurant Association, the National Association of Convenience Stores and the New York Association of Convenience Stores sued to prevent the city from enforcing its menu labeling requirements and argued the federal law preempted the New York City law. The F.D.A. filed a statement in support of the trade groups.

Under the agreement reached in court between New York City and the trade groups, the city agreed not to fine or sanction restaurants for alleged noncompliance with its calorie and nutrient information menu labeling requirements prior to the F.D.A.’s May 2018 compliance date for the national standards.

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