FDA recently issued two nutrition-labeling guidance documents intended to provide restaurants and food manufacturers flexibility during the public health emergency declared by the Department of Health and Human Services. These guidance documents are described below.
Guidance Regarding Nutrition Labeling of Certain Packaged Food For Retail Sale By Restaurants And Food Manufacturers
FDA's Guidance for Industry: Temporary Policy Regarding Nutrition Labeling of Certain Packaged Food During the COVID-19 Public Health Emergency is intended to provide restaurants and food manufacturers with flexibility regarding nutrition labeling so that they can sell certain packaged foods during the COVID-19 pandemic.
For restaurants that wish to sell packaged food to consumers directly, or to other businesses for sale to consumers, FDA does not intend to object if the packaged food lacks a Nutrition Facts label provided certain requirements are met. First, the label must include, as applicable: (1) a statement of identify; (2) an ingredient statement; (3) the name and place of the business of the food manufacturer, packer, or distributor; (4) net quantity of contents; and (5) allergen information required by the Food Allergen Labeling and Consumer Protection Act. Second, the food must not have any nutrition claims.
For food manufacturers that have inventory on hand that is labeled for use in restaurants, FDA does not intend to object to the sale of packaged food that lacks a Nutrition Facts label by food manufacturers provided the above requirements are also met.
Last, if retail packaging for certain food products is unavailable, FDA does not intend to object to the further production of food labeled for use in restaurants that is intended to be sold other than to restaurants until retail packaging is available.
The guidance does not apply to foods prepared by restaurants.
Guidance Regarding Nutrition Labeling of Standard Menu Items in Chain Restaurants and Similar Retail Food Establishments
FDA's Temporary Policy Regarding Nutrition Labeling of Standard Menu Items in Chain Restaurants and Similar Retail Food Establishments During the COVID-19 Public Health Emergency is intended to provide temporary flexibility to chain restaurants and similar retail food establishments currently required to provide nutrition information (including calorie declarations) on menus and menu boards for standard menu items.
Specifically, FDA will not object if covered establishments do not meet menu labeling requirements during the public health emergency related to COVID-19 declared by the Department of Health and Human Services.
FDA regulations 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 are required to provide nutrition information (including calorie declarations) on menus and menu boards for standard menu items so that the information is available for customers when they make their order selections.
FDA recognized that some covered establishments may have difficulty complying with the menu labeling requirements during the pandemic. FDA acknowledged that some covered establishments are undergoing rapid business changes in response to the pandemic, such as by converting to take-out only, which may require creating new or modified online ordering portals and printed takeout menus. FDA also noted that compliance may be difficult while experiencing disruptions in their supply chains during the pandemic that may impact availability of standard menu items.
FDA encouraged restaurants to comply with the menu labeling requirements to the extent possible.
Seyfarth Shaw attorneys are monitoring FDA's responses to the COVID-19 public health emergency.
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