FDA Delivers Two Dizzying Menu-Labeling Announcements

Agency officially aligns compliance and enforcement dates

WASHINGTON, D.C. -- After a clarifying statement followed by a backlash of criticism, the U.S. Food and Drug Administration (FDA) on Friday announced it will publish a final rule making May 5, 2017, both the compliance and enforcement date for menu-labeling regulations. This changes the agency's announcement just days earlier that the enforcement deadline would be May 5, but the compliance deadline was Dec. 1.

After the FDA released the initial statement on Nov. 29 explaining that compliance would go into effect Dec. 1, industry advocacy groups, including NACS and SIGMA, quickly expressed concern that the clarification is misleading at best, and nonetheless would open operators up to enforcement depending on where they operate. At worst, they said, it would leave operators vulnerable to private lawsuits.

In the Dec. 2 announcement, the FDA sought to clarify why there were two dates in the first place.

It explained that the agency was prohibited from using appropriated funds to "implement, administer or enforce the menu labeling requirements until one year after the FDA issues final guidance for industry on the menu labeling requirements. On May 5, 2016, the FDA published the final guidance and announced in the Federal Register that enforcement of the menu labeling rule would begin on May 5, 2017."
But while the FDA announced it would not begin enforcement until May 5, 2017, it did not "at that time formally make a change to the compliance date through rulemaking. Thus, the compliance date was officially December 1, 2016, as communicated in our November 29, 2016 Constituent Update. To bring the official compliance date into alignment with the enforcement date, the FDA is now announcing that it will issue a final rule to formally extend the compliance date to May 5, 2017." 

In a statement issued Thursday afternoon, NACS called upon convenience-store operators to “prepare as they have been for the May 5 deadline” and report any actions taken against them for not complying with the new regulations.

NACS meanwhile continues to urge the c-store industry to support the proposed Common Sense Nutrition Disclosure Act, which would “nullify” the FDA’s policy and influence Congress to “reverse” the rules and “protect the industry from overly aggressive state and local regulators.” 

The c-store industry has been working to move the bipartisan legislation forward, arguing that the current regulations fail to recognize how c-stores are different than restaurants—particularly big chain restaurants with relatively simple, standardized menus. The Common Sense Nutrition Disclosure Act seeks to offer more flexibility with compliance for c-stores and other nontraditional foodservice operations.

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