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FDA Clears Air on Menu Labeling Compliance

WASHINGTON, D.C. — The Food and Drug Administration (FDA) has issued a statement "clarifying" that the compliance deadline for the menu labeling rule still went into effect Thursday, Dec. 1, and not May 5, 2017, which is when enforcement will begin.

As a result, while the FDA will not take any enforcement actions until May, state and/or local enforcement could begin doing so now, according to NACS, the Association for Convenience & Fuel Retailing.

"This is particularly worrisome in California, that, as allowed by the FDA rule, passed their own state statute that mirrors the FDA rule. NACS is researching if any other states passed similar laws," said NACS in an e-mailed statement.

"This allows the state of California and the local health officials therein to begin enforcement actions as of today as well," it continued. "The California Department of Public Health has apparently recommended that local officials only take 'educational' action on this rule for the next six months, but that does not prohibit them from taking punitive action. The FDA announcement also opens the door for potential private lawsuits that could be brought against retailers for not being in compliance."

The FDA issued its final guidance on menu-labeling regulations on April 29. The final document contains virtually no changes from the original draft guidance, which was first issued on Nov. 25, 2014.

According to the association, it continues to be in contact with congressional leaders in an attempt to roll back the rule's impact on the convenience store industry. NACS said it will keep members updated on progress to enact the Common Sense Nutrition Disclosure Act, which would nullify the FDA's actions and any potential state or private claims that may arise in the meantime.

Introduced last year, the Common Sense Nutrition Disclosure Act of 2015 is designed to address concerns that food retailers have with the menu labeling regulations issued by the FDA.

Food retailer associations, including NACS and the Food Marketing Institute (FMI), threw their support behind the measure, as CSNews Online reported.

According to NACS, the Common Sense Nutrition Disclosure Act of 2015 clarifies that menu-labeling regulations are intended for standard menu items, defined as those items with substantially the same recipe, prepared in substantially the same way, with substantially the same food components that are routinely included on a menu or menu board, or are routinely offered as a self-service food or food on display at 20 or more locations.

The Common Sense Nutrition Disclosure Act was first introduced in the U.S. Senate in November 2013.

NACS urged covenience store operators to continue to prepare as they have been for the May 5 deadline. Members can contact the association if they find themselves subject to any form of action related to the menu labeling rule, it added.

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