FDA Extends the Compliance Date for Menu Labeling Rule Now What?

The U.S. Food and Drug Administration (“FDA”) was slated to begin enforcing its Menu Labeling Rule on May 5, 2017.  A last-minute rule filed by the FDA on May 1, 2017, however, further delayed the enforcement date to May 7, 2018. 

In addition to delaying the enforcement date, FDA is seeking public comments regarding how to amend the Menu Labeling Rule to further reduce regulatory burdens and increase flexibility for industry in accordance with the Trump Administration’s “Executive Order on Enforcing the Regulatory Reform Agenda.”  In particular, the FDA provides this last minute action is necessary for the Agency to pursue these aims “while continuing to achieve [the FDA’s] regulatory objectives, in keeping with the Administration’s policies.”

Background on the FDA’s Menu Labeling Rule

The Affordable Care Act (“ACA”) required the FDA to develop the “Food Labeling; Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments” rule (“Rule”), which it issued on December 1, 2014.  The requirements in the ACA and the Rule apply to retail food establishments with twenty (20) or more locations, which the Rule calls “covered establishments.” The Rule mandates calorie and other nutrition information for standard menu items in these covered establishments, including food on display and self-service food. 

 Menu labeling requirements have traveled a long and windy road, and it appears the journey is far from over. 

The Rule was initially scheduled to go into effect on December 1st of 2015, but delays by both the FDA and Congress pushed implementation back to May 5, 2017.  Relying on what appeared as late as December of 2016 to be a firm compliance date, many covered establishments began to prepare by collecting nutritional information and revising menus. 

Covered establishments may include a diverse mix of retailer like bakeries, cafeterias, coffee shops, convenience stores, delicatessens, food service facilities and concession stands located within entertainment venues, food service vendors, food takeout or delivery establishments, grocery stores, retail confectionary stores, superstores, quick service restaurants, and table service restaurants.  Notably, ownership is not determinative of whether an establishment is considered “covered.”  Therefore, the Rule applies to franchisees owning and operating only one establishment if that establishment is part of a chain of 20 or more establishments doing business under the same name and selling substantially the same menu items.

Under the Rule, a covered establishment must:

• Clearly and conspicuously display calorie information for standard items on menus and menu boards, next to the name or price of the item.
• Provide on the menu or menu board a succinct statement regarding recommended calorie intake.
• Provide on the menu or menu board a statement regarding the availability of additional written nutritional information.
• Develop and maintain written information for standard menu items which provides the number of total calories, calories from fat, total fat, saturated fat, trans fat, cholesterol, sodium, total carbohydrate, dietary fiber, sugars, and protein in that item.  This information may be provided to consumers via a counter card, sign, poster, handout, booklet, loose-leaf binder, menu, or electronic device or by other similar means

The aforementioned requirements only apply to standard menu items. A standard menu item is a restaurant-type food that is routinely included on a menu or menu board or routinely offered as a self-service food or food on display.  The menu labeling requirements typically will not apply to (i) seasonal menu items offered for sale as temporary menu items, (ii) daily specials, or (iii) condiments for general use typically available on a counter or table.

The calorie information and required statements must appear on all menus.  FDA considers a ‘“menu” or “menu board” to be the “primary writing of the covered establishment from which a customer makes an order selection.” Factors used to determine if a “writing” is a “menu” include:

• Does it list the name of a standard menu item (or an image depicting the standard menu item)?
• Does it list the price of the standard menu item?
• Can the writing be used by a customer to make an order selection at the time the customer is viewing the writing?

Under these factors, some promotional materials may be deemed a menu.  For example, a coupon for pizza delivery stating, “One large pepperoni pizza for $9.99,” that includes a phone number that a consumer could use to order the pizza, may be considered a “menu” and, therefore, must have the calorie information and required statements.

May 2017: Implementation Delayed

The delay in the Rule’s compliance date follows a concerted lobbying effort by retailers, including convenience stores and grocery stores to delay or forego its implementation.  On April 5, 2017, the National Association of Convenience Stores and the National Grocers Association petitioned the FDA to stay and reconsider the Menu Labeling Rule.  Conversely, many restaurant industry members, including the National Restaurant Association, have supported the Menu Labeling Rule and have expressed the concern about the impact this latest delay may have on restaurants who have already prepared for implementation. 

Nonetheless, the FDA cited fundamental questions and concerns with the final rule raised by a diverse and complex set of stakeholders, which may suggest that critical implementation issues, including some related to scope, may not have been fully understood.  Therefore, in an effort to further consider what opportunities there may be to reduce costs and enhance the flexibility of the Menu labeling requirements, the Agency has specifically requested comments on:

(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 comment period began on May 4 and will be open for 60 days.

What To Do Now?

One component of the Rule favored by many covered establishments was the Federal preemption of state and local menu labeling requirements.  Given the latest delay, establishments operating in jurisdictions with these types of requirements may still be subject to a patchwork of regulations. 

Nonetheless, a number of covered establishments have decided to implement the menu labeling programs they developed in anticipation of the FDA’s requirements.  Although those requirements may now be subject to change, they remain informative guidance for any establishment seeking to provide additional nutritional information to consumers.

Given the Agency’s broad request for comments, it appears FDA is considering amending the Rule or its enforcement guidance.  Therefore, the outlook remains unclear for covered establishments.  Interested parties should submit comments on the Rule to the FDA and continue to monitor the FDA’s website for updates or new enforcement guidance.