• Over the past several years, FDA has been in the process of implementing menu labeling provisions added to the Federal Food, Drug, and Cosmetic Act by the Affordable Care Act. Under the new requirements, restaurants or similar retail food establishments (in chains of 20 or more locations doing business under the same name and selling substantially similar menu items) must provide calorie and other nutrition information for standard menu items. The menu labeling requirements originally were scheduled to take effect on December 1, 2015. The compliance date has since been delayed until May 8, 2018. In the meantime, Congress has been considering legislation to modify the menu labeling requirements to provide flexibility in determining how to disclose nutrition information.
  • On February 6, 2018, the U.S. House of Representatives passed The Common Sense Nutrition Disclosure Act, introduced by Reps. Cathy McMorris Rodgers (R-WA) and Tony Cárdenas (D-CA), 266-157, with the support of 32 Democrats. The bill would allow restaurants and grocery retailers the choice of listing calories for the whole menu item, by serving, or per “common unit” of a food item. The bill also provides additional flexibility on where establishments can post calorie information. More specifically, under the proposed bill, nutritional information may be provided solely by a remote-access menu (e.g., an Internet menu) for food establishments where the majority of orders are placed by customers who are off-premises. The Food Marketing Institute applauded the passage of the bill.
  • Roy Blunt (R-Mo.) has offered a companion bill in the Senate where it likely faces an uphill but not insurmountable battle. The 16 co-sponsors of the Senate bill include three moderate Democrats up for reelection this year — Sens. Heidi Heitkamp (N.D.), Joe Donnelly (Ind.) and Claire McCaskeill (Mo.). The bill will need to garner the support of at least nine Democrats to pass the Senate. Given the increasing bipartisan support for this bill combined with the flexibilities afforded to industry under its provisions, The Common Sense Nutrition Disclosure Act (or some variation thereof) may have a chance of ultimately becoming law.