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FDA Postpones Enforcement of Menu Labeling Requirements

February 24, 2011

Five months after its release of a draft guidance regarding implementation of the federal menu labeling requirements set forth in Section 4205 of the Patient Protection and Affordable Care Act of 2010 (Act), the Food and Drug Administration (FDA) has decided to withdraw the draft guidance and postpone the enforcement of the labeling requirements pending completion of the rulemaking under the Act.  (See the October 7, 2010, Franchise Alert, "FDA Clarifies Nutrition Labeling Requirements for Chain Restaurant Menus," for a detailed analysis of the August 2010, draft guidance.)

The Act requires chain restaurants with 20 or more locations to post calorie information for standard menu items on their menus and menu boards, as well as provide other nutritional information to consumers upon request.  Although certain provisions of the Act became effective immediately, the draft guidance provides that FDA will temporarily refrain from enforcing those requirements for a period to be specified in the guidance, the final version of which was expected to be issued in December 2010.  After receiving extensive comments on the draft guidance, FDA acknowledged that industry may need additional time and guidance from FDA to comply with the labeling requirements. 

The International Franchise Association (IFA) was among the commenters requesting that FDA delay the enforcement of the menu labeling requirements until the completion of the rulemaking.  While reiterating its support for providing consumers with clear and consistent nutrition information, IFA emphasized the complexity of the franchise relationship, the different ways in which it can be structured and the consequent difficulties some restaurant owners would face in determining, among other things, what constitutes a "standard" menu item for purposes of the Act.  IFA also stressed the higher costs that restaurant owners would face arising from "dual implementation caused by the combination of guidance and rule-making," which, in light of the recent economic downturn, might threaten their very survival.

With FDA's announcement, the restaurant industry may breathe a sigh of relief.  As FDA appears determined to meet the Act's March 23, 2011, deadline to issue proposed regulations however, that relief will be temporary.