Menu Labeling Flexibility for Covered Establishments During Pandemic

The Food and Drug Administration (FDA) has issued a guidance to chain restaurants and similar retail food establishments (“covered establishments”) that sell standard menu items covered under the menu labeling provisions of section 403(q)(5)(H) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) to provide flexibility regarding these menu labeling requirements during the COVID-19 pandemic.

See generally Temporary Policy Regarding Nutrition Labeling of Standard Menu Items in Chain Restaurants and Similar Retail Food Establishments During the COVID-19 Public Health Emergency: Guidance for Industry (Apr. 2020).

Specifically, to help covered establishments address temporary business practice changes as a result of the COVID-19 public health emergency, the FDA does not intend to object if covered establishments do not meet the menu labeling requirements under section 403(q)(5)(H) of the FD&C Act (21 U.S.C. § 343(q)(5)(H)) and its regulation at 21 C.F.R. § 101.11 during the duration of the ongoing pandemic. The guidance is effective immediately and is intended to stay effective throughout the duration of this public health emergency.

The FDA is aware that some covered establishments are temporarily changing business practices as a result of the pandemic. For example, some dine-in operations are switching to takeout only, which may require changes in online ordering portals and printed menus. Additionally, some of these establishments may be experiencing temporary disruptions in the food supply chain, which may lead to different menus or substitutions that could affect the accuracy of the nutrition information provided. To give flexibility to these chains covered by menu labeling requirements, the FDA will not object if establishments do not meet menu labeling requirements during this public health emergency.

The FDA’s menu labeling regulation essentially require that restaurants and similar retail food establishments that are part of a chain with 20 or more locations, doing business under the same name, and offering for sale substantially the same menu items, provide nutrition information (including calorie declarations) for standard menu items on menus and menu boards.

Although already effective, comments on the guidance may be submitted to the FDA in accordance with the agency’s good guidance practices.

OFW Law will continue to monitor for updates from the FDA and will be posting them on our blog on OFWLaw.com.

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