Only a few more days stand between the FDA’s May 7 compliance deadline for the federal menu labeling standard signed into law by President Obama in 2010. But that compliance date has been delayed several times already, and its future isn’t entirely clear at this point, either.
Although Congress passed the law in 2010, FDA did not finalize its rule implementing it until December 2014. After that, FDA delayed the rule’s compliance date until December 1, 2016; Congress subsequently delayed it until May 5, 2017; and FDA delayed it once more until May 7, 2018.
So, we’re there – right? No, not exactly.
On February 6, the House passed H.R. 772, the so-called "Common Sense Nutrition Disclosure Act," which amends the Federal Food, Drug and Cosmetics Act to clarify the information certain retail food chain establishments, with 20 or more locations, must disclose about nutrition to the consumer. This amendment sought to prevent overly burdensome regulations for certain establishments, such as convenience stores, supermarkets, grocery stores and pizza restaurants, and to provide flexibility in how restaurants display calorie information.
Specifically, the bill allows retail food establishments where the majority of orders are placed by customers who are off-premise at the time their order is placed, such as pizza restaurants, to disclose nutritional information on a remote-access menu (such as an online menu) as the sole method of disclosure instead of on-premise wall signs or menus. The bill also eliminates criminal penalties and allows restaurants and retailers to take corrective action as well as preempts civil litigation for violations of the federal menu labeling law and any state laws that may exist. The bill makes accommodations for inadvertent variations that occur during the food preparation process.
This bill was received in the Senate on February 7, 2018, where it must clear committee and be voted on and passed by the Senate body before being sent to President Trump for signature. Should all that in fact happen, the compliance date would have to be moved once again to allow the FDA time to write the regulations necessary to implement the new law. Actually, the Senate version of the bill (S. 261) contains language specifically stating, “Regulations pursuant to this bill or the clause amended by this bill cannot take effect earlier than two years after final regulations are promulgated.” We would be looking at sometime late in 2020 as the next earliest compliance date if that language remained in the final bill.
On the other hand, if the Senate fails to act or to act in time for the bill-to-law process to be completed before May 7, the 2010 law and its resultant regulations will go into effect, and the FDA will be required to ensure compliance with those rules. While retail food establishments affected by the original legislation should be prepared for compliance on May 7, we’ll keep an eye on the outcome of these intervening legislative efforts.