Why 367 more days? A debriefing on the menu labeling delay
After seven years on the books and a mere 96 hours before it was set to go live, menu labeling was pushed out yet again. On May 1, 2017 the Food and Drug Administration decided to submit an “Interim Final Rule, Extension of Compliance Date; Request for Comments” to its own rules. It’s quite puzzling as to why they would settle on a date, publish that date and wait until the eleventh hour to delay that date one more time. The FDA’s newest delay was granted by the Office of Management and Budget (OMB).The new date for enforcement of menu labeling is now set for May 7, 2018.
Now, I have two huge concerns after watching all this unfold and evolve 2010. My first question is can we now expect the rules to change again? And secondly, once everything is ready for enforcement on the new date in 2018, what type of notice will be given to the many people involved in the nation's food service industry?
Very few changes have taken place in the rules since 2014, aside from some minor edits and a huge victory for pizza restaurateurs involving serving sizes but that required more than three years to complete. So what does the FDA now believe they can accomplish in the Interim Final Rule's 60-day discussion mandate?
A curious coincidence?
Could the timing of the potential incoming FDA commissioner have anything to do with the menu labeling delay? During the vetting process for nominee, Dr. Scott Gotlieb, a legislative committee asked him about menu labeling and he responded in writing, saying, "As a general matter, I support providing clear, accurate, and understandable information to American consumers to help inform healthy dietary choices. And I believe information about caloric content can be a useful tool. …. If confirmed, I will commit to working with FDA’s professional staff to quickly get up to speed on the regulatory history related to menu labeling, as well as FDA’s latest thinking and actions.”
I greatly appreciate Dr. Gottlieb’s beliefs and thoughts. It is personally my deepest wish that he does what he states here. Through trying to fulfill MenuTrinfo’s mission and by following this passion for many years now, I have found that one of the most frustrating things is simply getting the FDA to listen and actually follow their purpose.
In contrast, note the position of U.S.Health and Human Services Secretary Dr. Tom Price, who stated on May 1, "The FDA has made the right decision to delay a rule that would have essentially dictated how every food service establishment in America with more than 20 locations — restaurants, grocery stores, movie theaters, and more — writes and displays their menus.
"HHS believes strongly in promoting sound nutrition through public health efforts. Tackling childhood obesity is one of our top three stated clinical priorities. We should do this by helping families gain the information they need to make their own choices. Imposing burdensome rules that leave business managers and owners worried about harsh potential penalties and less able to serve their customers is unwise and unhelpful.
Price went on to say that as a member of President Donald Trump's administration, he will work with his agency to "focus on promoting public health in ways that work for American consumers." He said that the FDA's request for comments in the Interim Rule was designed to find ways to "make the Menu Labeling Rule more flexible and less burdensome while still providing useful information to consumers," which he said would be "the right balance."
I agree that it would simply the best solution possible if the federal government actually does consult with folks like myself who have worked with hundreds of brands and business types to prepare for menu labeling. The decision-makers in Washington, D.C., have never worked to make a complex menu board compliant themselves so asking them alone to make decisions that affect the entire industry is not realistic.
For instance, cost of compliance and enforcement has been one of the main push-backs on the entire menu labeling idea. Though that is far from the truth, it was largely inflammatory and as it turns out, it worked.
So, what should restaurant leadership do now?
- Take advantage of the extra time.
- Make sure your information is current.
- Stay connected to your nutritional help desk to stay informed on any changes the FDA may require.
- Maintain your nutritional information.
- If you change suppliers for any item in a recipe, update your nutritional information.
- If you seek a change in distributors, make sure you alsol know how it will change your ingredients.
- Coordinate your menu refreshes for the spring of 2018 to coincide with the next mandate deadline of menu labeling.
Is Menu Labeling Going Away?
No, not as we see it. There are too many current laws on the books in different, counties, cities and even states that require menu labeling compliance. Those current pieces of legislation would all need to be repealed individually to make menu labeling completely go away.
In fact, in the last few months we have seen an increase in enforcement on the local level based on who’s coming to us for help. See the map listed below for what menu labeling mandates are where before the federal mandate was introduced. Also worth noting on the map below, the yellow and orange are the areas that contain passed laws that are already on the books.
Map courtesy of Centers for Science in the Public Interest
Recently we had a restaurant approach us to complete their entire nutritional information for both the standard menu and the beverage/bar menu. They were prohibited by local legislation from opening on Long Island, without a menu stating the calorie information, and additional nutritional information being available. Getting menu labeling done and done right in a matter of days is no small challenge, whether outsourcing to your nutritional help desk or doing it yourself. Even with the latest delay of federal menu labeling, this brand did not have a choice to wait. Each day without the local health department allowing them to open was a burdensome expense.
In today’s culture of transparency, many of the folks I have spoken with in the last 48 hours are still moving forward with full disclosure to the consumer. No doubt there will be some bounce back but getting the information out there, sharing the truth and letting the government figure itself out on this seems to be to be the best option. The best offense is in fact a good defense.
Betsy Craig / Betsy Craig brings 20 years of food service industry experience to MenuTrinfo, LLC a menu nutritional labeling Company. Her commitment to the betterment of the food industry and her desire to affect the dining public are the driving forces behind her new company Kitchens with Confidence, LLC.