We previously wrote about when the FDA postponed restaurant nutritional labeling requirements at the 11^th hour. In Act II today, the FDA extended the compliance date for food manufacturers to update their nutrition labels by eighteen months.

Different Administration, Different FDA

In 2016, under the Obama Administration, the FDA published two final rules: the “Nutrition Facts Label Final Rule” and the “Serving Size Final Rule.” The Obama FDA set the deadline for compliance with these two rules for July 2018 for manufacturers with $10 million or more in annual food sales and for July 2019 for manufacturers with less than $10 million.

In June 2017, the FDA under the Trump Administration announced an indefinite delay in the launch of these initiatives. The FDA published a final rule on May 4, 2018, extending the deadline “in response to concern that companies and trade associations have shared with us regarding the time needed for implementation of the final rules and the need for FDA to provide further guidance to manufacturers subject to the final rules.” The  new compliance deadline is now January 1, 2020 for manufacturers with $10 million or more in food sales, and manufacturers with less than $10 million get even more time – until January 1, 2021 – to comply.

The Nutrition Facts Label Final Rule was intended to “improve how the nutrition information is presented to consumers” to “help consumers maintain healthy dietary practices.” It required manufacturers to make a number of changes to their labels including providing more detailed information regarding calories and nutritional context in the form of Daily Reference Values.

The Serving Size Final Rule was intended to “ensure that serving sizes are based on current consumption data and to provide consumers with information on the Nutrition Facts label related to the serving size that will assist them in maintaining healthy dietary practices.” It required all containers over a minimal threshold of Reference Amounts Customarily Consumed (in my house an entire can of Pringles or a pint of Three Twins ice cream) to be labeled as a single-serving container.

Keeping Today’s FDA Action in Perspective

While intense lobbying from some food and beverage industry trade groups has resulted in the delays to changes in the Nutrition Facts Panels and serving sizes, not every manufacturer has been sitting idly by. Manufacturers of all sizes have been early adopters in implementing these changes. When you go to the grocery store, take a little extra time to review the packages of the foods that you routinely buy. Chances are, you will see a mixture of new and old Nutrition Facts Panel formats.

While consumers and health advocates see the delays as a significant public policy gaffe by the FDA, FDA Commissioner Dr. Scott Gottlieb has stated that the FDA will be implementing other changes previously championed by the former Obama Administration such as sodium reduction targets for food products, and caloric disclosures on chain restaurant menus. According to the FDA, the changes that consumers will see are intended to educate everyone as to the link between diet and chronic diseases such as obesity and heart disease. Wherever you fall on the “need” for these rule change delays, gaining a better understanding that what we eat matters is a healthy goal for all of us.

FDA watchers may have experienced whiplash last week as the FDA did an about face and postponed restaurant nutritional disclosure regulations that were years in the making.

In 2014, under the Obama Administration, the FDA enacted regulations that required chain restaurants to disclose “certain nutritional information for standard menu items” to “enable consumers to make informed and healthful dietary choices.” The FDA noted that “two thirds of adults and a third of the children in the United States are overweight or obese” and that “[m]any people do not know, or underestimate, the calorie and nutrient content of…foods from restaurants and similar retail food establishments.” Restaurants and other covered establishments were required to comply with these regulations no later than May 5, 2017. The National Restaurant Association had supported the FDA’s efforts to create a “nationwide federal menu labeling standard….”

But at the eleventh hour, on May 4, the Trump Administration’s FDA postponed the compliance date to May 7, 2018, so the FDA could “consider how we might further reduce the regulatory burden or increase flexibility while continuing to achieve our regulatory objectives….” The Trump FDA not only postponed the compliance date, but also reopened the comment period, giving the public/other interested parties 60 days to provide public comment.

One suspects the restaurant industry must feel like high school students whose teacher just announced that tomorrow’s midterm was just rescheduled from this Friday to probably never.