FDA confirms further delay of enforcement of menu labeling requirements.

• 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.  The menu labeling requirements originally were scheduled to take effect on December 1, 2015.  FDA subsequently delayed enforcement to December 1, 2016.

• As we have previously reported, among the food-related provisions in last December’s omnibus spending bill was a requirement that FDA delay implementation or enforcement of the menu labeling requirements until one year after final guidance is published.  On March 9, FDA issued an official statement confirming this delay.  FDA issued draft menu labeling guidance in September 2015, but has provided no definite time frame for the issuance of final guidance.

• In reality, the omnibus bill restricts only the use of federal funds to implement or enforce the menu labeling requirements.  Thus, it is at least arguable that a state or local authority could use its own funds to begin enforcing the rule starting on December 1, 2016.  In light of this ambiguity, many companies continue to move ahead with implementing their compliance strategies with December 2016 as the targeted time frame.