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Updated menu labeling rules to take effect May 7

Enforcement of postponed federal menu labeling rules will begin on May 7, with some of the more burdensome requirements likely to be tempered before the start date, the Food and Drug Administration announced this afternoon.

The news is likely to be warmly received by the restaurant industry, which voiced displeasure with the Trump administration’s decision to push back enforcement this spring by a year. The postponement came less than a week before enactment was set to begin. Many of the establishments covered by the law—essentially units of most chains—had already invested the time and money needed to meet the main requirements. The delay in enforcement left many operations grappling with a patchwork of local disclosure mandates.

The industry has supported federal menu labeling rules as a preferable alternative to a quiltwork of regulations.

The FDA today released a draft of final labeling rules, asking for feedback from restaurants and other stakeholders affected by the mandate, a component of the Affordable Care Act. In setting the enforcement date, FDA Commissioner Scott Gottlieb previewed several of the changes his agency intends to make in the mandates in response to input from foodservice providers.

For instance, posters, billboards and coupons listing food and beverage items would not be regarded as menus, and hence would not have to include calorie counts for the items depicted.

Gottlieb also said the rules on self-service food bars and beverage stations would be relaxed. Instead of having to post calories separately for each option, an operation could provide one sign listing all the ingredients and their caloric contents. However, it was not clear if that break was extended merely to supermarkets and convenience stores or to all applicable foodservice venues.

He also specifically foreshadowed changes in the requirements for chain pizza restaurants, which had complained that their dozens of ingredients turned the menu labeling requirements as originally written into a logistical nightmare. Gottlieb said the proposed new final rules would provide models for easing that burden.

An initial look at the rules suggests the new guidelines for items like pizzas and sundaes are still fairly complex. The FDA has proposed that the calorie count for the basic version of an item—a 12-inch pizza, say—be provided, along with an indication of the calories for various toppings. For instance, the nutritional info might specify that asking for pepperoni on a pizza would add 45 calories. 

Typically overlaid on that information are variables such as the size of a pizza, the FDA noted. The agency notes in its analysis that the amount of a topping used on a pie is determined in part by how many toppings will be added—the more toppings, the smaller the portion of each, it asserted. For that reason, the FDA said, the proposed rules require pizzerias to provide a range of calories for the toppings rather than a set single measure.

It also noted that requests to drop disclosure requirements for alcoholic beverages did not bring a change in the proposed rules. Adult drinks will be treated as food, the agency said.

It also stressed that provisions were made for test items, where a chain offers a possible menu addition on a trial basis to assess its consumer acceptance. Products in those tests will be exempted from the disclosure rules as long as the test lasts less than 90 days, the FDA has proposed.

The changes suggested by the agency were met with approval from the National Restaurant Association. "We are pleased that the Food and Drug Administration took into account the comments from our industry in their menu labeling supplemental guidance document," said Cicely Simpson, EVP of public affairs for the association. "We will continue to work with the FDA to successfully implement federal menu labeling by May 2018."

 

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