Restaurants and other retail food establishments covered by the U.S. Food and Drug Administration’s (FDA) menu labeling regulations now have more time to comply with the regulations, according to a statement issued March 9, 2016, by Dr. Susan Mayne, Director of FDA’s Center for Food Safety and Applied Nutrition. The compliance date will now be one year after FDA issues final guidance on the menu labeling requirements.
The final regulations were published on December 1, 2014, with an original compliance date of December 1, 2015. In July 2015, FDA announced it was extending the compliance date by one year, to December 1, 2016. FDA issued its draft guidance in September 2015, and took comments on the draft guidance until November 2015.
In late December 2015, as part of its omnibus budget bill, Congress included a section that restricted FDA’s ability to enforce the menu labeling regulations. Section 747 states that FDA may not use any of the funds allocated to it by the omnibus budget bill to implement, administer, or enforce the final rule until the later of December 1, 2016 or the date that is one year after the date the final guidance is published. Given that FDA did not finalize its guidance before December 1, 2015, it was forced to delay the compliance date.
On the upside, although it is unclear when that guidance will be finalized, covered retailers have at least another year (and likely more) to bring their menus into compliance with the regulations. On the downside, continued delay in enforcement could impact defenses against local menu labeling requirements, like the recent sodium case out of New York City, where advocacy against enforcement may hinge at least partially on FDA’s enforcement of its menu labeling regulations.