As covered on this blog last week, on April 26, 2017, the FDA submitted an interim final rule (IFR) to the Office of Management and Budget (OMB) seeking an “Extension of Compliance Date” for FDA’s menu labeling requirements. The menu labeling provisions were added to the Federal Food, Drug, and Cosmetic Act by the Affordable Care Act.  Under the final rule published in 2014, restaurants or similar retail food establishments (in chains of 20 or more locations doing business under the same name and selling substantially similar menu items) must provide calorie and other nutrition information for standard menu items.  Until last week, enforcement of the new requirements has been expected to begin on May 5, 2017.

Yesterday, an unpublished interim final rule (IFR) was released that delays the compliance date for menu labeling requirements from May 5, 2017, until May 8, 2018 and invites comments for 60 days on the implementation of the menu labeling requirements.  The extension will be effective and the 60-day comment period will begin on May 4, 2017, when the Federal Register publishes the extension.  With respect to the requested comments, FDA is asking for feedback regarding “approaches to reduce the regulatory burden or increase flexibility.”  The Agency has specifically asked for comments on such approaches with respect to:

• calorie disclosure signage for self-service foods, including buffets and grab-and-go foods;

• methods for providing calorie disclosure information other than on the menu itself, including how different kinds of retailers might use different methods; and

• criteria for distinguishing between menus and other information presented to the consumer.

Health and Human Services Secretary Tom Price issued a statement praising the decision and requesting feedback on how to make the rule “more flexible and less burdensome while still providing useful information to consumers.”

FDA will be accepting comments until July 3, 2017.