The Food and Drug Administration (FDA) gave everyone a shock when they declared in late November that the compliance date for requiring calorie counts on menu boards was back to December 1. This was seemingly in direct contradiction to their earlier deadline of May 5, 2017, and caused heart rates to rise by giving retailers 48 hours to get their compliance program up and running. But don’t worry, Pennsylvanians, you are still on for May.
The FDA announcement was directed at states that had already adopted the December 1 date either in statute or in regulations, i.e. California. These states will keep their December 1 compliance date, and can expect enforcement to begin May 5, 2017. To this date, neither Pennsylvania nor any known locality has adopted the December 1 date. After retailers complained that the two dates were causing confusion, the FDA made the deadline May 5, 2017 for all states.
But there is reason for PFMA members to be wary of this announcement. The FDA was planning to utilize the first year under the new guidelines for education. With this announcement, retailers should expect the FDA to be in full enforcement mode beginning on May 5. This means that any establishment with 20 or more locations serving restaurant-type food must include calorie counts for each item on menu boards, salad bars, self-service kiosks, etc.
There is a likelihood that this standard may change with an incoming Congress and Presidential administration. As the labeling requirement was included in the Affordable Care Act (ACA), any work to roll back ACA requirements may also remove the statutory authority for the requirement. There is also legislation currently in Congress, the Common Sense Menu Labeling Act, which would more clearly delineate labeling requirements and lessen penalties for attempts at good faith compliance. PFMA is working with its federal partners and the Pennsylvania delegation to Congress to pass this legislation.
The FDA announcement was directed at states that had already adopted the December 1 date either in statute or in regulations, i.e. California. These states will keep their December 1 compliance date, and can expect enforcement to begin May 5, 2017. To this date, neither Pennsylvania nor any known locality has adopted the December 1 date. After retailers complained that the two dates were causing confusion, the FDA made the deadline May 5, 2017 for all states.
But there is reason for PFMA members to be wary of this announcement. The FDA was planning to utilize the first year under the new guidelines for education. With this announcement, retailers should expect the FDA to be in full enforcement mode beginning on May 5. This means that any establishment with 20 or more locations serving restaurant-type food must include calorie counts for each item on menu boards, salad bars, self-service kiosks, etc.
There is a likelihood that this standard may change with an incoming Congress and Presidential administration. As the labeling requirement was included in the Affordable Care Act (ACA), any work to roll back ACA requirements may also remove the statutory authority for the requirement. There is also legislation currently in Congress, the Common Sense Menu Labeling Act, which would more clearly delineate labeling requirements and lessen penalties for attempts at good faith compliance. PFMA is working with its federal partners and the Pennsylvania delegation to Congress to pass this legislation.
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