Jay Sjerven

The U.S. Food and Drug Administration on Nov. 7 issued a supplemental guidance for industry on menu labeling. The F.D.A. said the guidance document addresses concerns raised by stakeholders regarding the implementation of nutrition labeling required for foods sold in covered establishments and includes expanded and new interpretations of policy. The F.D.A. said the document also clarifies that there are additional options to complying with the labeling requirements and identifies places where the F.D.A. intends to be more flexible in its approach.

“F.D.A. is releasing a draft guidance in direct response to the comments we got on our menu labeling regulation,” said Scott Gottlieb, M.D., F.D.A. commissioner. “We’ve heard the concerns, took them to heart and are responding with practical solutions to make it easier for industry to meet their obligations in these important public health endeavors.”

The supplemental guidance issued on Nov. 7. follows a question-and-answer format in addressing the voiced concerns.

Dr. Gottlieb elaborated, “For instance, some store owners asked us whether posters, billboards, coupon mailings and other marketing materials would meet F.D.A.’s definition of a menu that would be required to include calorie information. Our new draft guidance explains that these materials are not considered menus under our regulation and do not require calorie counts.

Menu labeling
A new guidance document  from the F.D.A. includes expanded and new interpretations of the policy.

“Supermarket and convenience store managers with self-service buffets or beverage stations asked whether they needed to have an individual sign next to each item with a calorie declaration,” Dr. Gottlieb continued. “While this is one way to comply with the regulation, our draft guidance offers other practical ways to post calories for multiple items on a single sign. For instance, a single sign posting that is visible while consumers are making their selection is one way to comply that may provide additional flexibility for some establishments.”

Dr. Gottlieb said pizza delivery chain owners told the F.D.A. they were struggling to develop menu boards reflecting the thousands of topping combinations people might want on their pizza, so the agency in the supplemental guidance provided several new examples for how to do this in order to comply with the law’s language.

“In addition to these examples, we made many other clarifications and accommodations in the draft guidance to make sure implementation of the new menu labeling requirements goes forward on our stated timeframe and succeeds for the long-term,” Dr. Gottlieb said.

Response to the supplemental guidance document was generally positive. Leslie G. Sarasin, president and chief executive officer of the Food Marketing Institute, said, “When F.D.A. opened a comment period in May to review potential changes to the chain restaurant menu labeling rule itself, we participated in this process by submitting 32 pages of substantive comments that would help reduce the regulatory burden and increase flexibility in how food retailers provide meaningful nutrition information to their customers.

“F.M.I. appreciates the attempts by Commissioner Scott Gottlieb and F.D.A. to address some of these concerns within the limits of guidance,” Ms. Sarasin continued. “And we will continue to work with Congress and F.D.A. to complete the actions needed to provide the intended flexibility, certainty and enforcement protections that would allow food retailers and restaurants the confidence to fulfill our shared commitment to complete implementation once and for all.”

Cicely Simpson, executive vice-president, public affairs, National Restaurant Association, said, “We are pleased that the F.D.A. took into account the comments from our industry in their menu labeling supplemental guidance document. We will continue to work with F.D.A. to successfully implement federal menu labeling by May 2018.”

Even the Center for Science in the Public Interest, which had sued the F.D.A. after the latest delay in the compliance date, seemed assured the agency will now go forward. “With the draft guidance it issued today, the F.D.A. has answered industry questions about how to comply with the menu labeling rule,” said Margo G. Wootan, vice-president, nutrition. “Supermarkets, convenience stores, movie theaters, and restaurants should have the answers they need in time to post nutrition information before next May, as the administration has promised. This is an important and necessary step forward.”