Legislation Would Ease Some Burdens of Menu Labeling Rule

On February 6 the House voted 266 to 157 to pass legislation that would ease some requirements of the FDA’s Menu Labeling Rule, which is set to go live on May 7. As written, the rule, which emanates from section 4205 of the Affordable Care Act (ACA), requires chain restaurants, supermarkets, and convenience stores with 20 or more locations doing business under the same name and offering for sale substantially the same menu items to list the calorie counts of menu items and provide certain nutritional information upon request. Adopted last month, the bill—the Common Sense Nutrition Disclosure Act, has been introduced in the Senate, where it is stuck in committee.

The legislation would ease some of the rule’s requirements associated with listing calorie information for variable menu items and combination meals, says Jonathan Havens, vice chair of the Food and Beverage Practice at Saul Ewing Arnstein & Lehr LLP. For establishments such as takeout pizza shops where patrons mainly order online or over the phone, having calorie counts posted at retail outlets wouldn’t be required—posting them online only would suffice. In addition, covered establishments would have a 90-day grace period to correct any observed violations without the possibility of enforcement action.

“Some in the industry turned to Congress to help ease the rule’s compliance burdens, citing concerns about the lack of flexibility in the regulation’s one-size-fits all policy,” Havens says. Significant debates over the requirements in the FDA’s rule have occurred in recent years, and its implementation has been delayed several times.

“The thinking behind section 4205 of the ACA, and FDA’s rule implementing the same, is that if you give consumers calorie and nutrition information about the foods they eat while away from home, they will make smarter decisions. Whether or not having this information actually leads to healthier eating remains to be seen,” Havens adds.

Stephanie Barnes, chief regulatory officer and legal counsel, Food Marketing Institute, Arlington, Va., says the act fills some of the major gaps left by FDA’s Menu Labeling Rule. In particular, it allows for much needed flexibility that will help covered establishments continue to offer the large variety of food choices that grocery shoppers desire. This includes flexibility for disclosing information for self-service items and those that come in different flavors, varieties, or combinations. Additionally, the act provides enforcement protections for good-faith compliance efforts, so that members are not penalized for small technical violations that may be out of their control—such as signage designed to be easily movable being knocked over at a salad bar.

Havens says it’s uncertain when, if at all, the Senate will vote on the House-passed legislation. If the legislation dies but for some reason the FDA again delays rolling out the rule, New York City—which has grown tired of waiting on the FDA—may move forward with its own rule. The city wants to require food establishments with 15 or more locations to provide calorie and nutritional information. Only one such establishment would need to be in one of New York City’s five boroughs for the city’s rule to apply.