FDA Agrees to Enforce Menu Labeling Rule in May 2018

U.S. District Court Judge Emmet Sullivan today approved an agreement that paves the way for the Food and Drug Administration to begin enforcing regulations requiring chain restaurants, grocery stores, and convenience stores to include calorie counts on menus in May 2018.  The Center for Science in the Public Interest and the National Consumers League sued the FDA in June after the agency abandoned an earlier enforcement deadline only one day before enforcement was due to begin.  The nonprofit law firm Earthjustice, which represents CSPI and NCL, and the Department of Justice agreed to stay further proceedings in that lawsuit following an August 25th statement from FDA Commissioner Scott Gottlieb providing assurance that there will be no further delay and no changes to the menu labeling requirements.

Longtime advocates for menu labeling say that the agreement gives much needed clarity both to consumers, who overwhelmingly want and use calorie and other nutrition information, and to companies, many of which are already making calorie counts available to the public on their menus or websites.

“Since Americans are getting more food outside the home than ever before, having access to calorie information at chain restaurants is important for consumers who want to maintain a healthy weight and reduce their risk of diet-related disease,” said CSPI vice president for nutrition Margo G. Wootan.  Wootan was recently named by Eating Well magazine as one of the  2017 American Food Heroes for her work on menu labeling.  

“Congress passed a law requiring menu labeling more than seven long years ago, and the FDA finalized its regulations almost three years ago,” said Sally Greenberg, executive director of the National Consumers League. “Responsible companies have already invested in compliance.  As frustrating as this process has been, we’re glad that the end of the long campaign for menu labeling is now in sight.” 

The FDA finalized the menu labeling rule in 2014, with compliance and enforcement due to begin before the end of 2015.  The agency subsequently delayed enforcement until May 2017 and then, in the challenged rule, until May 2018.  Today’s agreement provides that the lawsuit challenging the delay will proceed only if the FDA announces an additional delay of enforcement or fails to issue guidance to industry by the end of 2017.  The guidance will clarify the menu labeling rule and aid implementation—but cannot weaken the rule’s requirements.

“Americans want and deserve to know what they’re eating,” said Earthjustice senior attorney Peter Lehner.  “So it is good news that the FDA has affirmed its commitment to ensuring that chain restaurants, supermarkets, convenience stores, movie theaters, and similar food retail establishments provide calorie and other nutrition information to customers.”   

Calorie labeling at restaurants isn’t entirely out of the woods, proponents caution.  A bill pending in Congress, the so-called Common Sense Nutrition Disclosure Act, would undermine the Administration’s implementation of menu labeling by exempting take-out chains, including pizza restaurants, and others from some of the requirements, and by letting retailers use arbitrary serving sizes to mask total calorie content.  The bill would also let supermarkets that sell restaurant-type food hide calorie information in less-visible locations.  

“Most of the biggest chain restaurants are already providing calories on menus and menu boards,” Wootan said.  “We hope Congress resists the efforts of outlier companies, notably Domino’s and other pizza chains, to weaken menu labeling.” 

Read the minute order, issued by Judge Emmet G. Sullivan on Sept. 26.