Responding to input from stakeholders, the FDA has decided to extend the deadline for complying with its Menu Labeling Final Rule from December 1, 2015 to December 1, 2016.  In general, the Rule requires chain restaurants and other food service establishments to provide calorie information on menus and menu boards.  We discussed the specific requirements under the Rule in a previous blog post.

Restaurants, grocery stores, and food service operators were facing a tight deadline for compliance with the Rule.   Companies first needed to determine whether they were “covered establishments” under the Rule; its scope is not always been clear.  If the Rule did apply, there would be a series of steps for implementing the requirements.  For example:

• A covered establishment would need to identify and classify the relevant “standard” menu items, and then coordinate with suppliers and third party testing organizations to collect and confirm the appropriate nutrition data. This process might require a covered establishment to update its software and information systems, so that it could organize, track, and disseminate accurate menu and nutrition information across the relevant business units and organizations.
• Once the data was collected, a covered establishment would re-design menus or menu boards to reflect the specific labeling requirements of the rule. Because of the way the Rule defines “standard” menu items, a single re-designed menu or menu board likely would not be appropriate for all outlets of a chain; menu variations, such as regional offerings, offered at a covered establishment are generally subject to the Rule.
• A covered establishment might also need to update training programs, oversight policies, and standard operating procedures to ensure product consistency.

Accomplishing these tasks within a year—particularly given holes in the FDA’s guidance—has proven difficult.  Since February 2015, the FDA received four separate requests for an extension to the compliance date.  After considering the questions of the stakeholders and the logistical challenges that companies face in implementing the Rule, the FDA agreed that additional time is necessary for the agency to provide further guidance and for covered establishments to come into compliance with the final rule.

Based on the FDA’s announcement, we expect that the agency will issue more guidance relating to the applicability and proper implementation of the Rule.  Thus far, the bulk of the FDA’s public guidance is contained in the Federal Register publication of the Final Rule and a Small Entity Compliance Guide.  The FDA has also provided answers on an ad hoc basis to specific stakeholders, a practice it will continue.  We will to provide updates as additional guidance becomes available.

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