On April 1, 2021, the Center for Science in the Public Interest (CSPI) joined five consumer and health advocacy organizations (the American Heart Association, American Public Health Association, Center for Digital Democracy, Consumer Federation of America, and Consumer Reports) in a letter urging FDA to draft guidance addressing nutritional labeling requirements for menu items on third-party online platforms (TPPs), like DoorDash, Seamless, Grubhub, and Uber Eats. Specifically, the letter requested that FDA make clear that both covered restaurants and TPPs must comply with the nutrition labeling requirements and highlighted the fact that most TPPs do not currently list calorie information on online menus.

Under the Affordable Care Act menu labeling provisions and FDA regulations finalized in 2018, restaurant chains with 20 or more outlets must include calorie information for standard items on menus and provide additional nutritional information upon request.  21 C.F.R. § 101.11(a) specifies that restaurants must include the information on both physical, electronic, and online menus. The consumer groups’ letter argued that TPPs must also comply with the nutritional labeling requirements under the misbranded food provisions in 21 U.S.C. § 331. FDA regulations, however, state that only the restaurants themselves need comply with the rule.

In April 2020, FDA announced it would not enforce the nutrition labeling requirements for restaurant menus as a flexibility for the restaurant industry during the COVID-19 pandemic, a policy change that remains in effect for the duration of the public health emergency. We will continue to monitor this issue and report on any developments.