In response to the COVID-19 pandemic, on April 1, 2020, the Food and Drug Administration (FDA) issued guidance to chain restaurants and similar retail food establishments that sell standard menu items covered under the menu labeling provisions of the Federal Food, Drug, and Cosmetic Act (“FD&C Act”).  The FD&C Act menu labeling requirements require restaurants and similar retail food establishments that “are part of a chain with 20 or more locations, doing business under the same name, and offering for sale substantially the same menu items” to provide nutrition information, including calorie information, for standard menu items on menus so that the information is available for customers.

In its guidance, FDA stated that this temporary flexibility may help food establishments that are temporarily changing business practices due to COVID-19 restrictions. For example, the FDA noted that some food establishments are switching to takeout only, which may require changes in online ordering portals and printed menus.  Moreover, the rapid transition to a takeout business practice may make it difficult for food establishments to provide nutrition information on standard menu items.  This guidance may also provide flexibility to those establishments that may be experiencing temporary disruptions in the food supply chain, which may lead to different menus, or substitutions that could affect the accuracy of the nutrition information.

Although the FDA encourages food establishments to comply with menu labeling regulations, the agency does not intend to object if food establishments do not meet menu labeling requirements.  However, the FDA noted that establishments will be required to comply with the menu labeling requirements upon conclusion of the public health emergency.