The Trump administration is moving forward with an Obama-era initiative requiring certain food establishments to list calorie information on menus and menu boards, including food on display and self-service food. The FDA recently released new draft recommendations to help affected businesses comply with the menu labeling rule.
The rule implements the nutrition labeling provisions of the Patient Protection and Affordable Care Act of 2010, which are intended to give consumers direct, point-of-purchase access to nutritional information, including the calorie content of foods. When the rule was originally published, we blogged about its impact on restaurants and followed up with a report on the Small Entity Compliance Guide, which explains the rule’s requirements in a question/answer format.
The rule has met stiff opposition and enforcement has been delayed multiple times. Most recently, just four days shy of implementation, the deadline for compliance was extended to May 7, 2018. The extension was intended to give the FDA time to consider how to reduce the rule’s regulatory burden and increase flexibility, while providing consumers with nutritional information.
The FDA’s recent guidance is non-binding and addresses stakeholder concerns regarding implementation of the rule, including:
- Clarifying calorie disclosure requirements for self-service food, including buffets and grab-and-go food;
- Addressing the need for flexible methods to provide calorie disclosure information;
- Explaining the criteria for distinguishing between menus and marketing materials;
- Addressing how the FDA will assist covered establishments to comply with the rule, and how it will enforce compliance;
- Expanding upon the “reasonable basis” standard that covered establishments must meet when disclosing nutritional information; and
- Explaining the criteria for determining whether establishments (including franchises) and menu items are subject to the rule.
The FDA invites public comment on the draft guidelines through January 8, 2018. We will continue to monitor developments and the rule’s effect on franchise systems.