King, Collins Call On FDA To Give Supermarkets And Grocery Stores More Time To Meet New Menu Labeling Requirements

WASHINGTON, D.C. – Today, U.S. Senators Angus King and Susan Collins made public the text of a letter they sent, along with Senators Roy Blunt (R-Missouri), Heidi Heitkamp (D- N.D.), Thad Cochran (R-Miss.), and Claire McCaskill (D-Missouri), to the Department of Health and Human Services urging the U.S. Food and Drug Administration (FDA) to delay new menu labeling requirements at supermarkets, grocery stores, and similar retail locations for at least one year. The bipartisan group emphasized that these establishments, which sell some food for in-store consumption, have never before been regulated under menu labeling laws, and have not been given adequate time or agency-issued guidance to comply with the new requirements.

“Since FDA published the final menu labeling regulations on December 1, 2014, to include chain restaurants as well as thousands of supermarkets and grocery stores, the agency has not provided adequate answers to questions or guidance for stakeholders impacted, especially supermarkets and grocery stores, to comply with the final rule’s current December 1, 2015, effective date,” said the senators in their letter. “We urge the FDA to further engage with the entire industry of stakeholders impacted by the menu labeling regulations to address outstanding issues and concerns. In addition, we request that you formally delay the effective implementation and compliance date for the menu labeling regulations by at least one year from the current date of December 1, 2015.”

These new menu labeling requirements stem from a provision in the Affordable Care Act that calls for a national, uniform nutrition-disclosure standard for foodservice establishments, primarily intended for restaurants. The FDA first released draft regulations to implement this provision in 2011, however, the agency also unexpectedly incorporated grocery and convenience stores because of the food sold at deli counters, snack bars, salad bars, and other in-store options.

The FDA, a sub-agency within the Department of Health and Human Services, published its final menu labeling regulations in December of 2014, and businesses currently have until December 2015 to comply with the regulations. By delaying the implementation and compliance date by at least a year, the agency would have more time to work with grocery stores, supermarkets, and other similar businesses to provide them with formal guidance to ensure that they fully understand and can comply with the regulations.

May 12, 2015

The Honorable Sylvia Matthews Burwell

Secretary, U.S. Department of Health and Human Services

200 Independence Avenue, SW

Washington, D.C. 20201

Dear Secretary Burwell:

We write regarding the Food and Drug Administration’s (FDA) final rule entitled, “Food Labeling; Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments.”  Specifically, we request that the agency formally delay the implementation and compliance date for menu labeling regulations at supermarkets, grocery stores and similar retail food establishments by at least one-year and not earlier than December 1, 2016.

Since FDA published the final menu labeling regulations on December 1, 2014, to include chain restaurants as well as thousands of supermarkets and grocery stores, the agency has not provided adequate answers to questions or guidance for stakeholders impacted, especially supermarkets and grocery stores, to comply with the final rule’s current December 1, 2015, effective date.  Given that supermarkets and grocery stores were not previously regulated under any federal, state, or municipal menu labeling laws, the supermarket and grocery store industry has sought clarification from FDA regarding the scope and variety of items potentially categorized as “restaurant-type” foods, as well as answers to many technical issues, in order for compliance work to begin. 

In March, former FDA Commissioner Margaret Hamburg acknowledged that application of menu labeling to “restaurant-like” establishments is the most complicated aspect of the regulations, and acknowledged that additional stakeholder guidance is warranted.  To that point, FDA has yet to provide this guidance to stakeholders, which has further compressed compliance time for stakeholders to review the rules, address outstanding issues, and comply with enforcement of the regulation by federal, state, and local health officials.

We urge the FDA to further engage with the entire industry of stakeholders impacted by the menu labeling regulations to address outstanding issues and concerns.  In addition, we request that you formally delay the effective implementation and compliance date for the menu labeling regulations by at least one year from the current date of December 1, 2015. 

Thank you in advance.  We look forward to your positive reply.