April 8, 2020
Authored by: BCLP, Brandon Neuschafer and Merrit Jones
In response to the COVID-19 pandemic, the U.S. Food and Drug Administration (FDA) has temporarily relaxed some of its requirements concerning menu and nutrition labeling, and extended certain enforcement deadlines.
The FDA has announced that it “will not object” if, during this public health emergency, restaurants and retail food establishments do not meet menu labeling requirements requiring disclosure of calories and other nutritional information.
The FDA regulations typically apply to 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.
The FDA stated that this policy is intended to provide flexibility to restaurants and food establishments that may have to rapidly transition to take-out only or that are experiencing disruptions in their supply chains requiring substitutions. To provide further guidance, it has issued Temporary Policy Regarding Nutrition Labeling of Standard Menu Items in Chain Restaurants and Similar Retail Food Establishments During the COVID-19 Public Health Emergency.
Nutrition Facts Label Enforcement
As we previously reported, although January 1, 2020, was the deadline for many companies to implement the new Nutrition Facts label, the FDA earlier stated that it would not take any enforcement action for the first six months, or until after July 1, 2020. The FDA has now announced that it intends to work cooperatively with manufacturers for the remainder of the year, and “will not focus on enforcement actions during this time.”
Sales of Packaged Foods Without Nutrition Facts Label
As a separate but related matter, the FDA announced that restaurants and food manufacturers that have certain packaged food not labeled for retail sale that they wish to sell at retail during the COVID-19 pandemic may do so, provided certain minimum labeling requirements are met. Specifically, the FDA “does not intend to object” if the packaged food lacks a Nutrition Facts label, provided that the food does not have any nutrition claims, and contains other required information on the label, including the following:
- a statement of identity,
- an ingredient statement,
- the name and place of the business of the food manufacturer, packer, or distributor,
- net quantity of contents, and
- allergen information required by the Food Allergen Labeling and Consumer Protection Act.
To facilitate labeling and sale of such food, the FDA has released an industry guidance, Temporary Policy Regarding Nutrition Labeling of Certain Packaged Food During the COVID-19 Public Health Emergency. The guidance is being implemented immediately.
For questions or more information, contact the authors, Merrit Jones and Brandon Neuschafer . BCLP has assembled COVID-19 Task Forces to assist clients with coronavirus issues across various jurisdictions. You can also view other thought leadership, guidance, and helpful information on our dedicated COVID-19/Coronavirus resources web page.