The Energy and Commerce Subcommittee on Health has passed the proposed Common Sense Nutrition Disclosure Act of 2015 (Bill) and heads to the full committee for consideration. The Bill is a direct response to the menu labeling rules issued by the Food and Drug Administration (FDA) on December 1, 2014, which require restaurants, grocery stores, and other retail food establishments to list the number of calories contained in food served on their menu. The purpose of the Bill is to relax the menu labeling requirements for restaurants and other retail food establishments and to limit the number of retail food establishments required to comply with the menu labeling rules.
The Bill as currently drafted makes the following notable changes to the menu labeling requirements established by the Patient Protection and Affordable Care Act of 2010.
- The Bill gives restaurants and retail food establishments more options for disclosing the number of calories contained in a menu item. Restaurants and retail food establishments can now disclose (1) the number of calories contained in a whole menu item, (2) the number of servings and calories per serving or (3) the number of servings per the common unit division of a menu item.
- The Bill allows restaurants and retail food establishments having mostly phone or online orders to disclose calorie information on an online menu or other remote-access menu rather than require that restaurants and retail food establishments disclose this information on the menus contained on the premises.
- The Bill defines “reasonable basis” to include acceptable amounts of variation in the nutrition information that restaurants and retail food establishments disclose for a menu item. These variations include allowances for variation in serving size, ingredients, and in how a menu item is prepared due to unintended human error.
- The Bill gives restaurants and retail food establishments more options for disclosing the number of calories contained in menu items that are listed as one menu item but come in different varieties and combinations, like soft drinks, ice cream, pizza, doughnuts or children’s meals. Restaurants and retail food establishments have the option of disclosing nutrition information for (1) the whole menu item, (2) a serving size, or (3) a serving size accompanied by the number of servings in the whole menu item.
- The Bill limits the definition of a “restaurant or similar retail food establishment” to establishments with more than 50% of their total revenue coming from the sale of food. This change would likely exclude most grocery stores, convenience stores, gas stations and movie theaters from having to comply with the menu labeling requirements.
- The Bill further postpones the effective date of compliance with the FDA’s menu labeling rules to at least two years after the promulgation of final regulations under the Bill.
- The Bill limits the liability of a restaurant or retail food establishment that does not comply with the FDA’s menu labeling rules to civil actions brought by the United States or State.
*Wendy Wright is admitted only in North Carolina. Her practice is supervised by principals of the firm admitted in the District of Columbia.