The Food and Drug Administration announced in a constituent update that it would extend the menu-labeling compliance date for covered establishments to May 7, 2018.

This extension, announced May 1, comes just a few days before the intended enforcement date set for this Friday, May 5, 2017 and amid pressure from industry stakeholders.

According to the FDA, this extension affords additional time to consider "what opportunities there may be to reduce costs and enhance the flexibility of these requirements beyond those reflected in the interim final rule."

The extension is effective as of the official Federal Register publication date of May 4, 2017, and the 60-day comment period will conclude July 3, 2017. The FDA is accepting additional comments to address issues related to the implementation of the menu-labeling requirements, with particular emphasis on the following issues:

  • Calorie disclosure signage for self-service foods, including buffets and grab-and-go foods
  • Methods for providing calorie disclosure information other than on the menu itself and
  • Criteria for distinguishing between menus and other information presented to the consumer.

Background

In Section 4205 of the Patient Protection and Affordable Care Act (ACA), Congress imposed nutrition-labeling requirements to certain restaurants and other retail food establishments ("covered establishments") with 20 or more locations. The ACA directed the FDA to issue implementing regulations by March 23, 2011.

FDA issued final implementing regulations on December 1, 2014 (79 FR 71156). In this 2014 final rule, the compliance date for covered establishments was December 1, 2015. FDA then extended the compliance date to December 1, 2016 (80 FR 39675). However, under the Final Rule, the enforcement date was to be one year after FDA issued the final guidance for industry on the menu labeling requirements, which was published May 5, 2017. Thus, to align the conflicting compliance date (December 1, 2016) and the enforcement date (May 5, 2017), FDA announced on December 2, 2016 that it would formally extend the compliance date to May 5, 2017 (81 FR 96364). This newest extension, to May 7, 2018, will be the third time that the agency has extended the compliance date.

Overview of menu-labeling requirements

At a high level, the menu-labeling law requires that restaurants and similar retail food establishments that are part of a chain with 20 or more locations provide certain nutritional information for standard menu items, including food on display and self-service food, and provide additional nutritional information upon request.

The threshold question of whether a business is covered by the menu-labeling law can be difficult to answer because the agency had adopted expansive definitions for "restaurant" and "similar retail food establishment." In the FDA's guidance, for example, the agency's interpretation is that amusement parks, bowling alleys, movie theaters and mall cookie counters are all covered establishments. The agency has exempted certain establishments altogether, including schools with a breakfast and/or lunch programs; transportation carriers serving food, such as trains and airplanes; regional or local restaurants and coffee shops with fewer than 20 locations; food trucks and sidewalk carts; prisons; and in-patient food facilities located inside hospitals.

For covered establishments, it is critical to understand the broad scope of the menu-labeling requirements. Some important questions to consider are what writing materials are considered "menus"? Which food and beverage offerings qualify as "standard menu items"? And what types of "additional information" must be provided to customers upon request?

The agency has adopted a broad definition for "menu" to apply to any primary writing from which a consumer can make an order selection, including online menus where customers can order online and drive-through menu boards. Generally, advertising and marketing materials are not considered menus, unless the written materials provide a phone number and/or web address with which the customer can place an order. Under such circumstances, advertising materials must include the mandatory calorie labeling requirements.

Standard menu items are defined as restaurant-type foods that are routinely offered on a menu, menu board, self-service food, or food on display. FDA has exempted several types of foods from this definition, including condiments for general use by the customer, daily specials, temporary menu items that are offered for fewer than 60 days, custom orders prepared specifically for a customer, and menu items that appear fewer than 90 days as part of a customary market test. Notably, alcohol is not outright exempted and presents a particularly nuanced approach to compliance.

Finally, additional nutrition information must be available in writing and include for every item the following information: (1) total calories; (2) calories from fat; (3) total fat; (4) saturated fat; (5) cholesterol; (6) sodium; (7) total carbohydrate; (8) dietary fiber; (9) sugars; (10) protein; and (11) trans fat. Additional information must also be provided if the covered establishment makes any nutrient content claims or health claims about the standard menu items.

Implications of compliance delay on the industry

FDA's repeated revisions to the menu labeling compliance dates have created significant confusion for the industry, and, while the most recent delay provides some relief on timing, the delay also raises a number of questions and potential concerns. As an initial point, the delay does not revoke the menu labeling requirements; rather, the 60-day comment period provides an opportunity for potential revisions. As such, it remains unclear what the new Final Rule will require and how it will differ from the current Final Rule, which makes working towards compliance difficult for covered establishments. Additional questions include:

  • Will the Administration use the new comment period as a vehicle to change the regulations in ways that make them less comprehensive and burdensome? Lobbyists will likely be active in pushing against the application of the rule to entertainment venues (such as amusement parks and movie theaters), arguing that entities should be exempt where providing meals is ancillary to the establishment's primary business.
  • Will the FDA revise the "20-location" aspect of the rule to more narrowly encompass only those establishments that are identical or nearly identical in a highly standardized way, meaning identical menu offerings and identical physical layouts?
  • Will the definition of "standard menu item" be narrowed further to account for different preparations of an item under the same generic name?
  • Will self-serve alcohol remain subject to the Final Rule's labeling requirements?
  • How will the previously implemented state-by-state labeling laws be impacted in the interim period prior to May 7, 2018?

One way or another, menu labeling is likely to stay, but the form it takes as of its next planned compliance date will be shaped over the next several months.