FDA Rightly Pulls Restaurant Menu-Labeling Guidance

The FDA’s move to require menu labeling for chain restaurants has been delayed, thanks to “extensive comments on the draft guidance submitted to the Agency” over the past several months.

The guidance referred to above, which the FDA published in August 2010, required calorie labeling for chain restaurants, and allowed restaurants subject to myriad state and local requirements to opt in and be covered by the federal rule. But the guidance (as is the case with guidance documents generally) contained no enforcement mechanism.

FDA recognized that industry may need additional guidance from the Agency and time to comply with these provisions. As a result, FDA stated that it expected to refrain from initiating enforcement action against establishments that are subject to, but not in compliance with, the provisions of section 4205 that became requirements immediately upon enactment of the law until a time period established in the draft guidance.

The FDA’s announcement that it has pulled the guidance and will initiate formal rulemaking (also called “notice and comment rulemaking”) probably means the agency won’t publish any final rule for about two years. Why? A report [PDF] published by Prof. Jeffrey Lubbers of Washington College of Law (who was Keep Food Legal executive director Baylen Linnekin’s administrative law professor) notes a recent analysis of thirteen years of formal rulemaking procedures that resulted in publication of final rules found the process for any non-controversial rule took on average more than 500 days. Not only will this rule be controversial, but the FDA has until March 23 before it even has to issue a proposed rule. That gives opponents of mandatory* menu labeling—including Keep Food Legal—time to alert our supporters and to respond to any proposed rule. (Though it also gives proponents of menu labeling, like Marion Nestle, more time to build support.) We will keep you informed and call on you to react when the time comes.

*Mandatory labeling is counterproductive and stifles innovation and choice. Keep Food Legal strongly supports voluntary menu labeling.