By: Rob Rosado, Senior Director, Food and Health Policy, Food Marketing Institute

Within the last two weeks, U.S. Representative Cathy McMorris Rodgers (R-WA) and conservative watchdog groups declared that now is the time for Congress to finally fix FDA’s “menu labeling” rule.

For several years, FMI has been seeking some flexibility under FDA’s “menu labeling” rule, so supermarkets can implement and provide calorie and other nutritional information that makes sense for the types of foods they offer and the customers they serve. 

The supermarket industry, as a whole, has invested up to a billion dollars to implement the regulations and come into compliance, but significant concerns remain that require Congressional action.

Earlier this year, FDA extended the menu labeling rule compliance date to May 2018 and opened up a process for restaurants, retailers and other foodservice operators to be heard about ways that common sense and flexibility could be incorporated into the agency’s final “menu labeling” rule. 

FMI, on behalf of the supermarket industry, participated in this process by submitting 32 pages of substantive comments that would help reduce the regulatory burden and increase flexibility in how food retailers provide meaningful nutrition information to their customer. 

Unfortunately, the Nov. 7, 2017, FDA draft guidance was insufficient and effectively closed the door on any modifications to the menu labeling rule and committed to enforcement beginning in May 2018. 

The guidance does not include the formal enforcement protections for good-faith compliance efforts, does not substantively allow use of a centrally located, prominent menu board for salad bars and other food displays, and does not preserve the ability to sell locally made and locally sourced foods. 

FMI continues to support enactment of the Common Sense Nutrition Disclosure Act (H.R. 772/S. 261) to provide liability and enforcement protections for good-faith compliance efforts, allow the use of a centrally located, prominent menu board for salad bars and other food displays, and preserve locally made and locally sourced foods.  Members of Congress and conservative watchdog groups agree that Congressional action is needed.

With the May 2018 compliance date fast-approaching, food retailers must have liability and enforcement protections to provide certainty after having spent billions of dollars and thousands of hours to implement the regulations in their stores. The enforcement protections provide for a 90-day corrective period if an inspector identifies something that is out of compliance.  The liability protections maintain federal and state’s ability to inspect, enforce and bring action but protect against private right-of-actions.

Please ask your Members of Congress to support these protections provided in the Common Sense Nutrition Disclosure Act. For more resources on menu labeling implementation, visit FMI.org/menu-labeling.