FDA promises menu labeling guidance as NYC agrees to delay enforcement

By Elizabeth Crawford contact

- Last updated on GMT

FDA promises menu labeling guidance as NYC agrees to delay enforcement
Two weeks after FDA filed a court document siding with industry’s effort to block New York’s controversial menu labeling law, the agency’s new head said the administration will soon issue compliance guidance for a similar federal law set to go into effect next year. 

“We have issued detailed regulations addressing what information should be provided in menus at restaurant chains and other similar retail establishments, as well as when and how that information should be provided,”​ FDA Commissioner Scott Gottlieb said in a statement Aug. 25.

And now, he added, the agency “will provide additional, practical guidance on the menu labeling requirements by the end of this year.”

He explained the additional guidance “will address concerns that were raised about challenges establishments faced in understanding how to meet their obligation under the regulations,”​ many of which were voiced in “thousands of comments from consumers, industry representatives and other interested parties, along with [in] many meetings and discussions with stakeholders.”

Among industry’s concerns​ were requests for more flexibility around labeling in grocery stores for local foods that are sold only at one or two locations and their ability to use one menu board for the prepared foods area or next to the salad bar. 

Given the widespread confusion apparent in the comments among other reasons, the Trump Administration pushed back the compliance deadline for the menu labeling requirement by a year until May 2018 to give FDA time to draft additional guidance.

That guidance will “establish a sustainable framework for enabling establishments to effectively meet the new menu labeling provisions”​ and “allow covered establishments to implement the requirements by next year’s compliance date,”​ Gottlieb said.

He added that “FDA takes seriously our responsibility to ensure that food is labeled in a manner that provides people with the information they need to make healthy choices. We will continue to fulfill our obligation to pursue science-based, public health focused federal standards across the full spectrum of our food regulatory authorities to the benefit of all Americans.”

While FDA worked to clarify the requirements in guidance, New York City leaders did not want to wait​ and declared that its Departments of Health and Consumer Affairs would begin enforcing menu labeling regulations that are near identical to the federal requirements – the only difference being the compliance date. 

New York City inspectors were slated to start fining establishments that did not comply on Aug. 21 after weeks of inspectors noting noncompliance during inspections for educational purposes only.

However, the city agreed Aug. 25 not to fine or sanction businesses that sell restaurant-like food and do not comply with its menu labeling requirements.

The agreement comes as part of a settlement with leading trade groups for the retailer and food service industries that fought back earlier this summer​ by filing a complaint in the district court to block the enforcement on the grounds that holding companies accountable prior to the federal law’s effective date would cause “irreparable harm.”​ Plus, they said, federal preemption protected their members from state by state regulations that were not identical to the federal rule. 

In a surprising move earlier this month, FDA filed a statement of interest in the case that sided with the industry – reiterating the claim that New York City’s mandate violated preemption. 

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