In February, President Trump released a report on rules, regulations, and executive orders which he wanted Congress to examine, revoke or issue within his first 100 days in office. Included among those was the Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments, which was to take effect last Friday, May 5. Although we’ve passed the first 100-day mark, and menu labeling is not exactly being examined or revoked by Congress, it also is not taking effect as published. Rather the compliance date is being extended by a full year (to May 7, 2018) for, what FDA has termed, “further consideration of what opportunities there may be to reduce costs and enhance the flexibility of these requirements beyond those reflected in the interim final rule.” Is this a result of President Trump’s call for “regulatory rollback” as “both a wakeup call to Congress and a warning to the American people [that] we are seeing our Liberty being regulated away”? We can’t be sure, but in our February 23 newsletter, First Hundred Days to Include Food Regulation Revocation?, we did see it as more susceptible to potential review than, say, the FSMA rules which were also on the list. Although it does still seem contradictory to me to be attempting to pull a law which is intended to benefit the public and enable consumers to better understand the food they choose to purchase and consume, its potential for the chopping block is further at stake when it is realized that the rule is rooted in the Affordable Care Act – the life of which has already been chopped by the House and is now in the hands of the Senate. As initially published in December 2014, the first line of the menu-labeling rule’s summary states: “To implement the nutrition labeling provisions of the Patient Protection and Affordable Care Act of 2010 (Affordable Care Act or ACA), the Food and Drug Administration (FDA or we) is requiring disclosure of certain nutrition information for standard menu items in certain restaurants and retail food establishments.” As the summary continues, the ACA provision, on which the menu-labeling rule is based is “restaurants and similar retail food establishments that are part of a chain with 20 or more locations doing business under the same name and offering for sale substantially the same menu items are required to provide calorie and other nutrition information for standard menu items, including food on display and self-service food.” So, if the Affordable Care Act is repealed or replaced, as has been a key component of Trump’s platform since his candidacy, will the menu-labeling rule simply disappear? Or will FDA continue to move it forward in May 2018 to fulfill its objective for restaurants and other retail food establishments to provide accurate, clear, and consistent nutrition information, including the calorie content of foods, “to make such nutrition information available to consumers in a direct and accessible manner to enable consumers to make informed and healthful dietary choices.” Or, perhaps, was this extended compliance date an opportunity to wait out the healthcare debate to enable more flexibility in a final rule? Regardless of the reason or intent, the extension is providing industry and interested stakeholders with additional time to comment to FDA with your thoughts, suggestions and recommendations. FDA specifically mentions a request for comments on the implementation of the menu labeling requirements, such as approaches to reduce regulatory burden or increase flexibility related to: (a) calorie disclosure signage for self-service foods, including buffets and grab-and-go foods; (b) methods for providing calorie disclosure information other than on the menu itself; and (c) criteria for distinguishing between menus and other information presented to the consumer. For information on submitting comments, see the Federal Register document. Anyone who is in the business of having to comply with the menu labeling rule will be well aware of this delay. However, what is interesting is that the delay was so last minute that many of the companies TAG works with were ready to go and were about to roll the menu labeling out, if they had not already done so. Thus, this delay may not fundamentally change the trend that is already occurring of more menu labeling. What the delay will allow is more time for food service operations to get it right – which is always helpful. About The Acheson Group (TAG) Led by Former FDA Associate Commissioner for Foods Dr. David Acheson, TAG is a food safety consulting group that provides guidance and expertise worldwide for companies throughout the food supply chain. With in-depth industry knowledge combined with real-world experience, TAG’s team of food safety experts help companies more effectively mitigate risk, improve operational efficiencies, and ensure regulatory and standards compliance. www.AchesonGroup.com
