FDA Extends Menu Labeling Compliance Date

On July 9, 2015, the U.S. Food and Drug Administration (FDA) announced that it is extending the date for compliance with its menu labeling requirements by one year. Under the new timeframe, businesses covered by the menu labeling final rule, including chain restaurants, covered grocery stores, and others, must comply with the requirements by Dec. 1, 2016.

Congress established national requirements for menu labeling in the Patient Protection and Affordable Care Act of 2010 (ACA). Under the ACA and FDA’s final rule, restaurants or similar retail food establishments (who sell restaurant-type food) that are “part of a chain with 20 or more locations doing business under the same name (regardless of the type of ownership of the locations) and offering for sale substantially the same menu items” must comply with the menu labeling requirements. Businesses not covered by the rule may voluntarily comply by registering with FDA every other year. While the compliance date has been extended, the final rule still becomes effective Dec. 1, 2015, strengthening the argument that the ACA’s preemption of inconsistent state, local or municipal laws takes effect no later than Dec. 1, 2015.

FDA will provide ongoing support to help covered businesses comply with the final rule. To this end, FDA will answer questions from covered businesses about how the final rule applies in their specific situation. FDA plans to issue a draft guidance document in August 2015 to answer frequently asked questions faced by many covered businesses. Finally, FDA will provide educational and technical assistance to covered businesses and will work collaboratively with individual companies to help those companies come into compliance with the final rule.

Other “similar retail food establishments” covered by the final rule include:

  • Bakeries;
  • Cafeterias;
  • Coffee shops;
  • Convenience stores;
  • Delicatessens;
  • Food service facilities located within entertainment venues (such as amusement parks, bowling alleys, and movie theaters);
  • Food service vendors (such as ice cream shops and mall cookie counters);
  • Food take-out and/or delivery establishments (such as pizza take-out and delivery establishments);
  • Grocery stores;
  • Retail confectionary stores;
  • Superstores;
  • Quick service restaurants; and
  • Table service restaurants.

At its most basic, the final rule requires covered businesses to include calorie information on menus, menu boards, or displays (depending on the type of food covered); to provide written nutrition information for standard menu items upon request by a customer (and to note on its menus, menu boards, and displays that this extra information is available); and to include on menus and menu boards a succinct statement concerning suggested daily caloric intake.