As previously covered on this blog, over the past few years, FDA has been in the process of implementing menu labeling provisions added to the Federal Food, Drug, and Cosmetic Act by the Affordable Care Act.  Under the new requirements, 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.  Although the menu labeling requirements were originally scheduled to take effect on December 1, 2015, enforcement was later delayed to December 1, 2016.  Enforcement was subsequently delayed to May 5, 2017.

Yesterday, the FDA submitted an interim final rule (IFR) to the Office of Management and Budget (OMB) seeking an “Extension of Compliance Date”. The IFR is entitled “Food Labeling; Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments; Extension of Compliance Date; Request for Comments.”  It appears that FDA is extending the compliance date for menu labeling to allow interested parties to submit additional comments – potentially on specific issues raised by the National Association of Convenience Stores (NACS) and the National Grocers Association (NGA) in their citizen petition filed on April 5, 2017 (available here).  The NACS/NGA citizen petition did not request a specific amount of time industry needs to comply, but rather contested the validity of the scope of the regulation and requested a stay until outstanding issues have been resolved).

It is unclear when the IFR will be published, but given that the menu labeling compliance date, May 5, is a week from today, and the fact that a delayed compliance date, potentially leading to less burdensome requirements for industry, are in keeping with the stated goals of the Trump administration, we expect OMB will do its best to fast-track publication.