Menu Labeling Deadline Drama

HourglassLast week was full of excitement and worry, as the FDA released a menu labeling deadline update that shook the foodservice industry.

Within 4 days, we went from thinking the industry still had 5 months to become compliant with menu labeling, to menu labeling taking effect, and finally having the FDA officially make May 5, 2017 as the enforcement AND compliance deadline.

Is your head spinning yet? Here’s a breakdown of the action:

December, 2015: The 2016 Omnibus Bill was signed. This contained verbiage that prohibited the FDA from enforcing the menu labeling regulations until one year after they released final guidance.

May 5, 2016: FDA released final guidance, marking the enforcement date as May 5, 2017. The FDA also declared this as the new compliance date, and continued to share that message throughout publications and public workshops throughout the year.

November 29, 2016: The FDA released a constituent update to “clarify” that the 2016 Omnibus bill was only intended to change the enforcement date, not the compliance date. The compliance date was stated as December 1, 2016 (a.k.a. 48 hours after this was released). To quote the FDA, “On December 2015, section 747 of the 2016 Omnibus Bill prohibited FDA from using appropriated funding to implement, administer, or enforce the menu labeling requirements until one year after FDA finalized the draft September 2015 menu labeling guidance. While FDA originally issued a statement indicating the Omnibus Bill extended the compliance date, FDA is clarifying that the compliance date remains December 1, 2016, but, consistent with the Omnibus Bill, FDA will not begin enforcing the final rule until May 5, 2017, which is one year after the date that the Notice of Availability for the final guidance published in the Federal Register.”

This meant that any states/cities/counties that had adopted identical menu labeling regulations could then start checking for compliance and delivering penalties. California was the most notable of these locations, but that’s not to say there wouldn’t have been others. There was a huge backlash from the industry, with complaints that becoming compliant within 48 hours in those locations was impossible. Even Congress got involved, with numerous Senators and Representatives filing complaints with the FDA Commissioner.

December 2, 2016: FDA releases a second statement that they will be publishing a new rule to make May 5, 2017 the enforcement AND compliance deadline.

And that brings us to today…right back where we started. While the deadline action last week brought some stress to the industry, it also shone a light on an important menu labeling detail that may have been previously overlooked. States, cities and counties are starting to adopt the federal regulations to replace any previous rules. This means that, come May 5th, local health officials in those areas can start cracking down on non-compliance. It’s no secret that the FDA hasn’t been too forthcoming with their enforcement tactics, but having trained officials at the local level checking on menu labeling makes the threat of penalties for non-compliance much more real. While the FDA has stated that the first year of menu labeling compliance will be more focused on education for the industry, it’s still not clear if local health officials will be taking that same approach.
While the dust has settled from last week’s compliance deadline change, that should only give the industry a momentary sigh of relief. We are only 5 months away from the federal enforcement date, and becoming fully compliant takes time. It’s already cutting it close to be ready by May, and each passing day just makes it that much more difficult. The time to prepare for menu labeling is NOW, and those that choose not to take this seriously will find themselves unable to be ready in time and could face federal penalties and major consumer backlash. Would you like the help of a third-party consultant to get you started? Give us a call today at 970-295-4370 and we would be happy to chat with you.

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