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After years of compliance date delays, New York City and FDA appear to have agreed to begin enforcing rules that would require chain restaurants and other establishments to post certain calorie and nutrition information in their stores on May 7, 2018.
On August 14, the federal government, through the Department of Justice (DOJ), filed a Statement of Interest in a lawsuit between a group of food industry trade associations and New York City regarding the city’s food chain menu labeling rule, which requires certain food establishments to post calorie information and other nutritional information. The lawsuit arose following NYC’s announcement in May that it would begin to enforce its own local menu labeling rule after FDA delayed the enforcement date of a similar federal menu labeling regulation for the third time. The trade associations sought an injunction to block NYC from enforcing its rule, and in its recent filing, the DOJ stated its agreement that the NYC rule should be barred on preemption grounds.
Last week FSIS’s Revised Nutrition Facts Panel proposed rule was placed on the list of “inactive” regulations, indicating that the rule is no longer a priority and will be reconsidered at an unspecified time in the future

Menu of the Day

July 24, 2017
The current unsettled status of restaurant menu labeling rules may be headed toward some form of resolution. FDA first promulgated a final federal menu labeling rule in December 2014 requiring that calorie information be posted on menu labeling boards in covered food retailers.

USDA’s Agricultural Marketing Service (AMS) posted 30 questions for stakeholder input regarding the establishment of a national disclosure requirement for identifying bioengineered foods and food ingredients. The legislation requiring the disclosure of bioengineered foods was enacted on July 29, 2016, and gave AMS two years to establish a national standard and the procedures necessary for implementation (see our LawFlash, New GMO Legislation Signed Into Law, for more information on the legislation). AMS is now seeking input from stakeholders in order to issue a proposed rule this fall, such that it may promulgate a final rule by the mandated July 2018 deadline.  

On May 18, 2017, New York City announced plans to begin enforcing its updated local menu labeling rule, just weeks after FDA announced the postponement of the compliance date for a similar federal menu labeling rule, from May 2017 until next year. These two actions potentially raise novel and significant issues of federal preemption.
Continuing the pattern of delays in the implementation of a compliance date for the menu labeling final rule requirements (previously covered in our posts, FDA Delaying Enforcement (Again) for Menu Labeling Final Rule (March 2016) and LawFlash: FDA Issues Menu Labeling Final Guidance (May 2016)), FDA has issued an interim final rule (to be published on May 4, 2017) again extending the compliance date for menu labeling requirements by one year—from May 5, 2017 to May 7, 2018.
On March 31, FDA published a final guidance document on acceptable unique facility identifiers (UFIs) for Foreign Supplier Verification Programs (FSVPs). FDA states in the guidance that it now formally recognizes the Dun & Bradstreet (D&B) Data Universal Numbering System (DUNS) number as an acceptable UFI for FSVP.
In the last few years, food and beverage companies have been defending against a new trend of claims related not to the products they manufacture, but the packages in which the products are sold.
On December 1, the US Department of Agriculture's (USDA’s) Food Safety and Inspection Service (FSIS) issued a proposed rule to amend the nutrition labeling regulations for meat and poultry products (Proposed Rule). The revisions in the Proposed Rule are meant to parallel, to the extent possible, the US Food and Drug Administration’s (FDA’s) two similar final rules concerning nutrition fact labels (Nutrition Labeling Rules).