Enforcement of the federal menu labeling regulations begins May 7, 2018. Restaurants and other similar retail food establishments that are part of a chain of 20 or more locations nationwide doing business under the same name (“Covered Establishments”) must comply with these regulations. In short, the federal menu labeling regulations require the posting of calories on menus and menu boards.
Here is a brief Q&A that highlights some of the most common questions Covered Establishments may have:
Q1. Is the enforcement date really May 7, 2018? Last year enforcement was delayed—will the FDA really stick with the May 7 date?
Yes. The enforcement date for the menu labeling regulations really is May 7, 2018. This means that starting May 7, 2018, the Food and Drug Administration (FDA) and/or state and local health agencies can begin enforcing the requirements of the menu labeling regulations. We do not expect FDA will delay the enforcement date again.
Q2. Didn’t Congress just pass a law revising the menu labeling regulations?
No. Earlier this year, the House of Representatives passed a bill that would amend some of the menu labeling law’s requirements, including imposing a required 90-day opportunity for Covered Establishments to correct any points of non-compliance. The legislation is now in the Senate, but has not been reviewed by the appropriate Senate committee. The likelihood that the Senate will pass this legislation before May 7, 2018 is low. This means that Covered Establishments should expect that May 7, 2018 will be the enforcement date.
Q3. What happens if our business is not in compliance by May 7, 2018?
Because these are new regulations, predicting the enforcement environment is difficult. Federal law allows FDA to impose monetary penalties and/or jail time for violations of the Food, Drug and Cosmetic Act (FDCA). However, we believe it is more likely that the FDA will issue Warning Letters and require Covered Establishments to fix the points of non-compliance—at least within the first few months after enforcement begins. Note, is it important to understand that enforcement efforts may vary considerably, especially geographically. Also, it is important to pay attention to state and city-specific laws and regulations, as they may provide different exposure and risks for restaurant groups. For example, certain states, like California, provide for state-level remedies, including monetary penalties.
While no private right of action exists under the FDCA (i.e., a right of individuals to file suit or compel enforcement action), plaintiffs (encouraged by plaintiff’s attorneys) often bring lawsuits under state consumer protection laws for violations of the FDCA. Again, because these are new regulations, we are not certain whether private party enforcement will be successful, but we think plaintiffs may bring lawsuits to try and enforce the regulations.
Q4. Where do I find more information about the requirements?
The regulation and guidance documents FDA published are linked below. Consult an attorney or other consultant with any questions about these regulations and how they apply to your business.
- 21 C.F.R. § 101.11 Nutrition Labeling of Standard Menu Items in Covered Establishments
- FDA’s Menu Labeling Requirements Page
- Guidance for Industry: A Labeling Guide for Restaurants and Retail Establishments Selling Away-From-Home Foods – Part II (Menu Labeling Requirements in Accordance with 21 CFR 101.11) (April 2016)
- Draft Guidance for Industry: Menu Labeling Supplemental Guidance (November 2017)