The City of New York (“City”) recently settled a lawsuit with the Food Marketing Institute (“FMI”) and other food and convenience industry groups resulting in a delay, until May 7, 2018 (when the Federal regulations are slated to go into effect), of the City’s enforcement of its recently passed menu labeling regulations.

The menu labeling regulations (both city and federal) require restaurants and similar retail food establishments that meet certain criteria (for example if they have 15 or more locations under the city regulations or 20 locations under the federal regulations) to, among other things, list calorie information on their menus and menu boards. FMI, and other food and convenience industry groups, had initially filed suit against the City in the U.S. District Court for the Southern District of New York on behalf of its industry members following the City’s announcement that they would start enforcing their own menu labeling regulations due to implementation delays at the federal level. Interestingly, the Department of Justice filed a Statement of Interest with the Court in support of the trade association’s position, which, among other things, argued that the City’s early enforcement of the menu labeling regulations is expressly preempted by federal law. Without federal preemption of city and/or state laws regarding menu labeling, restaurants and similar establishments would have to be concerned about complying with a patchwork of different federal, state and/or city laws with potentially different requirements.

The federal menu labeling provisions were initially enacted in 2010 as part of the Patient Protection and Affordable Care Act. The task of implementing and enforcing such regulations fell to the Food and Drug Administration (“FDA”).  Although the FDA has issued a final rule, the date for enforcement has been repeatedly delayed, and is currently set for May 2018.  The commissioner of the FDA issued a statement online the same day that the settlement was announced stating that the FDA will provide additional guidance on compliance with the federal menu labeling provisions prior to the current required implementation date of May 7, 2018. Although the statement did not provide explicit detail as to the contents of the future guidance, the commissioner provided that “this additional guidance will address concerns that were raised about challenges establishments faced in understanding how to meet their obligations under the new regulations.”

The full statement from the commissioner is available on the FDA’s website:

https://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm573277.htm