The Food and Drug Administration (FDA) recently opened a docket pertaining to a petition filed by Philadelphia seeking to exempt from preemption a menu labeling ordinance that requires chain restaurants and retail food facilities in the city to provide calorie, fat and sodium information for the food and beverage products they sell.

According to the petition, the ordinance meets three requirements under the Federal Food, Drug, and Cosmetic Act allowing FDA to grant an exemption from preemption: the ordinance “was designed to address a particular local need for information which need is not met by the requirements” of federal labeling law, the exemption from preemption “would not unduly burden interstate commerce,” and the exemption “would not cause any food to be in violation of any applicable requirement under federal law.”  

Philadelphia contends that while Congress required uniformity in chain restaurant menu labeling as part of the Patient Protection and Affordable Care Act of 2010, 21 U.S.C.S. § 343-1(a), it “specifically left untouched subsection (b) which provides that the Secretary of Health and Human Services may exempt any state or local requirement from subsection (a) if the aforementioned three factors are met.”