As discussed previously, earlier this year, the U.S. Food and Drug Administration (FDA or the Agency) delayed its Menu Labeling Rule (the Rule) until May 7, 2018. FDA’s announcement in May came just one day before the Rule was set to go live.
By way of background, the Rule (discussed here, here, and here) requires restaurants and “similar retail food establishments” (e.g., convenience stores and grocery stores) that are part of a chain of 20 or more locations and that sell similar menu items to post on menus and menu boards: (1) calorie information; (2) a statement on suggested daily caloric intake; and (3) a statement that written nutrition information is available upon request (and provide such information upon request).
In response to the Agency’s Rule delay, the Center for Science in the Public Interest (CSPI) and the National Consumers League (NCL) sued FDA (see our previous posts here and here). CSPI and NCL argued that consumers will be harmed if they do not have access to the calorie and other nutrition information required by the Agency’s rule, as unhealthful menu options and the inability to access such nutritional information “contribute significantly to the current obesity epidemic and interfere with individuals’ ability to manage chronic disease,” per the groups’ complaint.
On September 27, 2017, the U.S. District Court for the District of Columbia (the court) approved an agreement between Earthjustice, which represents CSPI and NCL, and the Department of Justice to stay further proceedings in CSPI’s and NCL’s suit. Per the agreement, the suit will proceed only if FDA announces an additional delay of enforcement of the Rule beyond May 7, 2018 or fails to issue guidance to industry regarding the same by the end of 2017.
Also last week, the Agency indicated via a proposed rule that it would delay enforcement of the new Nutrition Facts and Supplement Facts (NFSF) requirements from 2018 to 2020 for certain companies. As discussed previously, on June 13, 2017, FDA paused the new NFSF labeling requirements indefinitely. Per the proposed rule, FDA would extend the compliance date from July 26, 2018 to January 1, 2020 for manufacturers with $10 million or more in annual food sales. Manufacturers with less than $10 million in annual food sales would receive an extra year to comply, until January 1, 2021. Pending completion of the rulemaking, the Agency intends to exercise enforcement discretion with respect to the current July 26, 2018 and July 26, 2019 compliance dates.
Beyond a number of formatting changes for packaged foods, including increasing the type size for “calories,” “servings per container,” and the “serving size” declaration, and bolding the number of calories and the serving size declaration, significantly, the NFSF rules would require the inclusion of “added sugars” on the new label. The “added sugars” requirement has been particularly controversial, with some in industry arguing that it compels speech in violation of the First Amendment.
Despite FDA’s NFSF delays, some in industry are moving forward in light of the time and money already spent preparing to comply with the labeling requirements. For example, Mars Inc., maker of several candy products and Uncle Ben’s rice, noted that it will still be issuing compliant labels on certain products within the next several months, and will be fully compliant by next year.