FDA Extends Compliance Date for Menu Labeling Rule (Again)

The U.S. Food and Drug Administration (FDA) announced on May 1, 2017, that it is extending the compliance date for the menu labeling rule by a year, from May 5, 2017 to May 7, 2018. According to FDA, “this extension allows for further consideration of what opportunities there may be to reduce costs and enhance the flexibility of these requirements beyond those reflected in the interim final rule.” The last-minute move follows two prior extensions of the compliance date. 

What is the menu labeling rule?

FDA published the final menu labeling rule, “Food Labeling: Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments,” on December 1, 2014. The rule requires certain restaurants and similar retail food establishments with 20 or more locations to post calorie amounts for standard menu items, among other requirements.

Why is FDA issuing another extension?

FDA provides a number of reasons for the extension, including the need to address a range of questions and concerns about implementation, to provide flexibility for retailers with diverse business models, and to achieve consistency with recent executive orders aiming to reduce regulation and regulatory costs. Retailers, including the National Grocers Association and the National Association of Convenience Stores, had recently urged FDA to stay the effective date given continued questions about implementation. FDA admits that these “fundamental questions and concerns with the final rule suggest that critical implementation issues . . . may not have been fully understood and the agency does not want to proceed if [it does] not have all of the relevant facts on these matters.” 

Citing recent executive orders (including Order 13777 “Enforcing the Regulatory Reform Agenda,” signed by President Trump on February 24, 2017), FDA plans to reconsider the rule consistent with the administration’s policies to “alleviate unnecessary regulatory burdens” and to use the additional time to address stakeholders’ questions.

To assist FDA in its review, the agency again invites comments on the implementation of the menu labeling requirements and is specifically interested in ways to reduce regulatory burden and increase flexibility with respect to:

• Calorie disclosure signage for self-service foods
• Methods for providing calorie disclosure information other than on the menu itself
• Criteria for distinguishing between menus and other information presented to consumers, such as coupons

The 60-day comment period will begin once the Federal Register Notice is published this Thursday, May 4, 2017.

What is the immediate impact of the extension?

Many restaurants and retailers have already implemented menu labeling in anticipation of the 2017 compliance date. Others may wait for answers to their questions and additional guidance from FDA over the next year. Both groups face the prospect that states and localities may seek to adopt or enforce their own, and often conflicting, menu labeling regulations. Relief from this patchwork of state and local regulations was one of the anticipated benefits of the federal regulations. The menu labeling rule preempts state and local menu labeling requirements for covered businesses unless identical to the federal requirements. Restaurants and similar retail food establishments that are not covered under the federal requirements (such as restaurants with fewer than 20 locations) remain subject to state or local menu labeling requirements.