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Below are some key provisions in FDA's newly proposed regulations regarding calorie counts for menu items at restaurants:
While the regulations do not provide any additional bases for preemption, the accompanying materials do explain that FDA does not consider the express preemption clause in the legislation to include laws requiring warnings relating to safety of the food or a food ingredient. Presumably this would include warnings under California's Safe Drinking Water and Toxic Enforcement Act (commonly known as Prop 65).
In addition to releasing the proposed rules related to menu-labeling, FDA also released regulations regarding the labeling of food sold in certain vending machines. The rules apply those who own or operate 20 or more vending machines selling food items. FDA's proposed regulations for vending machines can be found on the FDA menu labeling website.
FDA also indicated its intent to continue to exercise its enforcement discretion for the already-effective measures of the legislation until after it publishes final rules related to nutritional labeling. FDA proposes to begin enforcement of the newly-proposed regulations six months after publishing the final rule.
The comment period for these proposed regulations will be open until June 6, 2011. FDA is encouraging comments on these proposals and has presented several possible alternatives for several of these rules. We encourage industry participants to provide comments at http://www.regulations.gov, Docket No. FDA-2011-F-0172.
Faegre & Benson will continue to monitor and report back on future rules and guidance as FDA moves forward with implementing these menu-labeling provisions.
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