The Affordable Care Act is intact, Bill de Blasio is on hold, and FDA Commissioner Scott Gottlieb is on board.
That means big restaurants’ menus might yet be required to include calorie counts under federal regulations.
Let’s take these developments one at a time.
Legal authority for menu labeling rests in that much-maligned but politically durable Affordable Care Act. Otherwise known as Obamacare, the ACA survived the congressional chopping block this past spring and summer.
With FDA in a holding pattern for a year on enforcement of the regulations that are ready to go, it was conceivable federally mandated menu labeling would go away with the death of Obamacare. But the Republican majority failed at that task.
When FDA put things on hold, New York City Mayor Bill de Blasio took off. The Big Apple tried to fill the space by imposing menu labeling regime on its own.
The threat of state and local governments imposing a maze of menu labeling laws is why industry groups like the National Resturant Association favor the federal program.
Federal menu labeling is designed to keep state and local governments at bay. It applies to chain restaurants with 20 or more locations, including supermarkets, convenience stores, and similar retail outlets. It also permits any single-site operator to register with the federal system and thereby escape any attempts to impose state and local menu laws.
New York City wanted to move in and fill space when the federal program appeared to no longer be on the tracks, but that’s no longer going to happen.
The Big Apple and organizations representing grocery store, convenience store and restaurant owners reached a court settlement announced Friday. New York City has agreed not to fine or sanction businesses for alleged non-compliance with calorie and nutrient information menu-labeling requirements before a May 2018 compliance date established by the FDA.
“The Food Marketing Institute is pleased we were able to reach a settlement with the city, which both protects our members from fines prior to the federal compliance date and also serves as a strong deterrent for other states and localities from prematurely enforcing the federal menu-labeling rule prior to the federal compliance date,” said FMI Chief Public Policy Officer Jennifer Hatcher.
She says local enforcement is “preempted by federal law,” and FMI is encouraging its members to comply with the federal rule “subject to any further modifications or clarifications…”
Lyle Beckwith, senior vice president of government affairs for NACS, said the settlement is “a victory for common sense.” He praised NYC because it “agreed not to jump the gun.”
The final piece was FDA Commissioner Gottlieb’s statement Friday, promising “additional practical guidance” on the menu-labeling requirements by year end.
“We are pleased that the Food and Drug Administration will provide clear menu labeling guidance by the end of this year,” commented Cicely Simpson, NRA’s executive vice president.
“The FDA,” Gottlieb said, “takes our responsibility seriously to ensure that food is labeled in a manner that provides people with the information they need to make healthy choices.”
Taken together, these recent developments mean is likely federally imposed menu labeling is going to take effect next year. In the meantime, FDA is going to be under pressure to bring down the costs of the regulations.
NACS’s Beckwith points to a new economic study that finds the industry’s costs of complying with the existing rule will be more than $300 million a year or more than triple FDA’s estimate. He says the actual expenditures for convenience stores is seven times higher than the estimate.
As it stands now, the menu labeling showing calorie counts for the various choice takes effect on May 7, 2018. Many restaurant chains were ready to comply when the hold was put on the new regulations.
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