FDA Draft Guidance On Menu Labeling

Author:Mr Nathan Beaver and Michael D. Flanagan
Profession:Foley & Lardner
 
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On November 7, 2017, the Food and Drug Administration (FDA) released draft guidance regarding menu labeling requirements for certain chain restaurants and food establishments that are subject to the menu labeling requirements of section 403(q)(5)(H) of the Federal Food, Drug, and Cosmetic Act.1 This guidance responds to concerns raised by industry stakeholders about the labeling requirements which were originally published as a final rule on December 1, 2014 (79 Fed Reg. 71156) and codified at 21 CFR 101.11. The implementation of this rule has been delayed multiple times. The rule's current compliance date is May 7, 2018.

The stated intent of the draft guidance is to provide clarity regarding the menu labeling requirements and give industry stakeholders more flexibility in implementing them. Comments on the draft guidance can be submitted to FDA beginning November 9, 2017 until January 8, 2018 at http://www.regulations.gov, docket number FDA-2011-F-0172.

The draft guidance outlines options, detailed below, for complying with menu labeling requirements in regards to self-service food; marketing materials; menu boards; build-your-own,combination, and family-style food items; and franchises. Pictorial examples of compliant labeling can be found in the draft guidance linked here.

Below is a summary of the most significant clarifications provided in the draft guidance.

Self-Service Food

Individual signs detailing calorie information are not required to be posted next to each item on a self-service buffet. As long as consumers can view the name, calorie declaration and the serving size while selecting the item, companies can use a variety of means to display the information.

The statement providing context about calories in a daily diet and the availability of additional written nutrition information is not required on every sign for self-service food, so long as it is on a sign/menu board that the consumer an easily read when making selections or ordering food.

Marketing Materials

Marketing materials, including coupons, generally do not require calorie declarations because they are not considered menus. Only materials from which a customer makes an order selection require a calorie declaration. Written material, such as a poster on a storefront, a coupon, or other promotional materials whose primary purpose is to "entice" customers into the covered established are not covered by the rule. This guidance supersedes previous guidance issued by the...

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