YOUR SOURCE ON FOOD LITIGATION AND REGULATION

Sonic Drive-In reached a $4.3 million settlement on October 10 with its customers over the chain’s data security breach in 2017 that exposed customer credit and debit card information at 325 Sonic Drive-In locations.[1] The attack followed a pattern familiar in the retail and restaurant context, where hackers infect the point-of-sale system with malware that copied and transmitted the information from consumers payments cards when used to make a purchase. Plaintiffs filed several class action lawsuits for violations of state consumer protection laws and data breach notification statutes, along with various common law causes of action. The lawsuits were consolidated into a multidistrict litigation proceeding in the Northern District of Ohio in early 2018.

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.

Consumers who plan to cheat on their diets on bowling night may need to develop a different plan. Four years after the passage of the Patient Protection and Affordable Care Act of 2010 (ACA), FDA released its final rule to require restaurants and “similar retail food establishments” that (1) sell “restaurant-type food,” (2) are part of a chain of 20 or more locations, (3) do business under the same name or slight variations of each other, and (4) offer for sale substantially the same menu items as the other business locations, to disclose calorie information on menus and menu boards. Vending machines are also covered under a separate final rule that governs the practices of businesses that own or operate 20 or more vending machines. After the withdrawal of the FDA’s Draft Guidance on menu labeling and the submission of more than 1,100 comments to the proposed rule, the final rule has created a storm of controversy within the retail food industry, as broadly defined by FDA.