On Monday, the U.S. Food and Drug Administration filed a pre-publication version of an interim final rule that extends the compliance date of the agency’s final menu-labeling rule until May 7, 2018. In addition to the delay, FDA requests comments on how the agency may reduce the regulatory burden on retailers and alternative approaches for labeling self-service foods, other methods for providing calorie disclosure other than on the menu itself, and criteria for distinguishing between a menu and other information such as an advertisement. The interim final rule is scheduled to be published on May 4, and comments will be due 60 days later—on July 3.
“Retailers with many different and diverse business models have raised concerns about how the rule lacks flexibility to permit them to provide meaningful nutrition information to consumers given their type of business and different operations,” the interim final rule says. “We have decided to extend the compliance date. The additional time will allow us to consider what opportunities there may be to address these fundamental and complex questions…”
Initially released on Nov. 25, 2014, the regulations established menu-labeling requirements for chain restaurants and “similar retail food establishments.” Generally, establishments that are covered by the rule must post calories for standard menu items on menus or menu boards or, for self-service items and foods on display, on signs adjacent to the items, as well as provide additional written nutrition information to consumers upon request.
Earlier this month, the National Grocers Association (NGA) and the National Association of Convenience Stores (NACS) submitted a petition to the FDA—which the agency specifically referenced in the interim final rule—asking the FDA to delay the final rule’s effective date.
According to the groups, FDA’s regulations add unfair costs and compliance barriers to establishments with offerings that do not appear on a centralized “menu” board, and establishments that may have multiple coffee, frozen drink and food islands as opposed to the central ordering point in a traditional fast-food restaurant. The regulations also place a store or restaurant at risk for criminal penalties if it gives some customers larger servings than they expected based on the calorie information provided.
Greg Ferrara, NGA’s SVP of government relations and public affairs, said, “The menu- labeling law, as originally passed by Congress, was intended to cover chain restaurants. But unlike chain restaurants, supermarkets operate in a variety of formats without standard menu items. Instead, many prepared food items sold in their stores are tailored to the community, and recipes, even for the same item, sometimes vary from store to store based on customer needs and demands.
“While chain independent supermarkets are committed to providing consumers with information, implementation of this regulation would be one of the most expensive regulations for the supermarket industry with estimates exceeding $1 billion. We applaud the Administration for acting swiftly to address the concerns of Main Street grocers and look forward to working with the FDA on important fixes to the regulation that will provide independent supermarkets with flexibility to be able to provide consumers with this information and protection from frivolous lawsuits as they work to implement this regulation in-store.
“We are also committed to continuing to work with our champions in Congress to pass the Common Sense Nutrition Disclosure Act (H.R. 772/S. 261) to ensure these reforms are codified into law.”
NACS also applauds the delay and will submit comments on the interim final rule. NACS says it also will continue to support legislation introduced in both the previous and current Congress, the Common Sense Nutrition Disclosure Act.
NACS adds that it will continue to work with Congress and the administration to help ensure that the rules are revised so that they work for everyone.
Food Marketing Institute (FMI) President and CEO Leslie G. Sarasin said, “We appreciate FDA and the Trump administration’s thoughtful approach to taking more time to review the Food and Drug Administration’s proposed restaurant “menu-labeling” rule, which allows for an opportunity to resolve some of the tremendous challenges associated with its application in a grocery store environment. The Obama Administration deemed this rule to be the third most burdensome of FY 2010, with an estimate of more than 14.5 million hours necessary for compliance—an estimate now proven by the industry to be very low.
“Led by FMI in its continued efforts to assist its member companies in providing meaningful and accurate information to its customers, the supermarket industry for several years has sought common sense regulatory flexibility, such as liability protections for good-faith compliance efforts, allowing the use of a central menu board for a salad bar, and creating a regulatory environment that preserves the opportunity for selling locally-made and locally-sourced foods. These are sensible modifications that can easily be made and that will allow grocery stores to provide information to customers in a more efficient and accurate, less costly manner. It is wholly appropriate and necessary for FDA and the Trump Administration to review this rule and its corresponding burdens using the common sense and logic that has been absent in the process thus far.”
The National Restaurant Association (NRA), however, says it is “concerned with the impact of the delay in the implementation of the federal menu-labeling law just days before the scheduled effective date.”
Cicely Simpson, the group’s EVP of government affairs and policy, said, “This delay upends plans that have been in motion for years throughout the food industry. We will continue to strongly advocate on behalf of what is best for small businesses and American consumers.”