FDA Announces Intent to Extend the Compliance Date for New Nutrition Facts Rules

This morning, FDA’s Office of Nutrition and Food Labeling announced that it intends to extend the compliance date for the new Nutrition Facts requirements.  FDA’s announcement, which is included on its “Changes to the Nutrition Facts Label” webpage, notes that, after feedback from industry and consumer groups: 

FDA determined that additional time would provide manufacturers covered by the rule with necessary guidance from FDA, and would help them be able to complete and print updated nutrition facts panels for their products before they are expected to be in compliance.

As a result, the FDA intends to extend the compliance dates to provide the additional time for implementation. The framework for the extension will be guided by the desire to give industry more time and decrease costs, balanced with the importance of minimizing the transition period during which consumers will see both the old and the new versions of the label in the marketplace.

Trade groups have clearly advocated for an extension and for clarity on the new rule, many pushing for the compliance date to align with the compliance date for the GMO disclosure requirements.  To be clear, however, FDA did not indicate the length of the ultimate extension or tie it to the GMO disclosure requirements. FDA will provide details on the extension through a Federal Register Notice at a later time.

It seems that the agency will encounter an uphill battle against consumer groups. Consumer groups oppose any delay, let alone a delay that would align with the compliance date for GMO disclosure requirements – USDA has until July 29, 2018, to finalize GMO disclosure rules, a standard that will likely not take effect for several years thereafter.

The Center for Science in the Public Interest (CSPI), for example, organized a letter from researchers and scientists urging Dr. Gottlieb to keep the current compliance date.   Today CSPI posted an article describing its disdain for “the ability of the Trump Administration to repeat mistakes.” CSPI is referring to FDA’s recent extension of the compliance deadline for its Menu Labeling Rule to May 7, 2018. The agency also initiated a 60-day comment period seeking input on approaches to reduce regulatory burden or increase flexibility of the Menu Labeling Rule.  

In response to the extension for compliance with the Menu Labeling Rule, CSPI and the National Consumers League (NCL) filed a lawsuit on June 7, 2017, asking the court to declare that Menu Labeling compliance is required immediately. The consumer groups argue, among other things, that FDA failed to comply with rulemaking requirements in extending the compliance date and that extending implementation of the Menu Labeling Rule will deprive consumers of essential nutritional information.  

It seems that CSPI and/or other consumer groups could use the same tactic (and an almost identical rationale) in an attempt to require FDA to adhere to the July 2018 compliance date for the new Nutrition Facts requirements. 

We will blog more as the agency provides further details on the compliance date.

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