Following Congress’ decision to move forward with an Omnibus spending bill that did not include language from the Common Sense Nutrition Disclosure Act and a lack of movement on legislation in the Senate, it appears as though the Food and Drug Administration’s (FDA) menu labeling regulation will go into effect as scheduled on May 7, 2018. The regulation requires that any banner operating more than 20 stores under the same name and selling substantially the same prepared foods must comply with new caloric labeling standards.
While the FDA has announced that the first year after implementation will be focused on educational efforts intended to help companies come into compliance, many companies are wary of state and local inspectors and the potential for penalties and fines for minor infractions or simple misunderstandings. Additionally, despite the fact that the FDA has stated its intention to not seek enforcement actions within the first year, there has been no prohibition against private rights of action during that same timeframe, leaving the door open for activist groups or private entities to take legal action beginning on May 7.
The FDA published draft guidance in November 2017, which can be seen here. Though the guidance does remain problematic for many covered entities, it did provide answers to some outstanding questions. Primarily, the guidance resoundingly stated that marketing alliances will not be covered under the regulation as they do not sell substantially the same foods and do not have a centralized menu as many large-scale chain grocery stores or chain restaurants may have. While the FDA has yet to put out final guidance since the January 8, 2018 comment deadline on the draft guidance, the FDA has signaled that it is unlikely to make any radical departures from the draft guidance when the final guidance is published. The draft guidance remains the best guide for covered entities who are still working towards compliance to follow.
Following the passage early this year of legislation in the House, NGA continues to urge the Senate HELP Committee to take up the Common Sense Nutrition Disclosure Act in order to provide companies with the additional flexibility needed to make this regulation work for all covered entities. NGA will also be hosting a webinar regarding compliance preparations today (May 2) with the help of Veronica Colas of Hogan Lovells. For more information on this webinar or information on this regulation, please contact Matt Foley, NGA Director of Government Relations at firstname.lastname@example.org.