FDA Issues Nutrition Labeling Draft Guidance For Restaurants

Written By Katharine Richter

On September 11, 2015, the Food and Drug Administration (FDA) released a draft guidance titled “A Labeling Guide for Restaurants and Retail Establishments Selling Away-From-Home Foods – Part II (Menu Labeling Requirements in Accordance with 21 CFR 101.11).”

According to the draft guidance document, “section 4205 of the Patient Protection and Affordable Care Act amended 403(q)(5)(H) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 343 (q)(5)(H)) to require that restaurants and similar retail food establishments . . . provide calorie information for standard menu items.”

The guide was issued to assist restaurants in complying with the final rule published by the FDA December 1, 2014, which requires standard menu items to have the nutrition content labeled.  According to the guidance document, “the rule is codified at Title 21 of the Code of Federal Regulations at § 101.11 (21 CFR § 101.11).”  The rule applies to restaurants and similar retail establishments that have 20 or more locations operating under the same name with similar menu items.  This includes bakeries but will not include food trucks, schools, prisons, trains, and a few other exceptions mentioned in the draft guidance.

The guidance document describes what is defined as a ‘covered establishment’ under the act and the expected nutritional labeling requirements and how to implement the changes.  The draft offers nonbinding recommendations and the FDA is accepting comments to better clarify sections that may still contain ambiguities and questions.

G20 Agricultural Ministers Decry Food Waste

At the conclusion of the May 7-8 Group of 20 (G20) Agricultural Ministers meetings in Istanbul, Turkey, the attending Agricultural Ministers issued a statement regarding the “enormous economic, environmental and societal significance” of food waste. 

According to the group’s Final Communiqué, global waste can result in “negative consequences for food security, nutrition, use of natural resources and the environment.” The Agricultural Ministers acknowledged that while food waste issues will necessarily vary among diverse nations, all nations should strive to use “otherwise wasted food to feed people.”

To provide nations with guidance regarding the reduction of food waste, the Agricultural Ministers proposed that the G20 Agricultural Deputies and G20 Development Working Group create a G20 Action Plan on Food Security/Sustainable Food Systems in time to be considered at the November 2015 G20 Leaders’ Summit in Antalya, Turkey. 


United States Secretary of Agriculture Tom Vilsack issued a statement commending the efforts of the Agricultural Ministers in addressing the issue of food waste.  Significantly, Secretary Vilsack noted that the Agricultural Ministers “focused on suggesting how countries might approach the issue rather than regulating or compelling people to stop food waste.” 

Written by M. Sean High - Staff attorney

June 1, 2015

Court Enjoins Implementation of the New York City “Soda Ban”

On July 30, 2013, an appeals court for the state of New York affirmed a lower court’s ruling that the Sugary Drinks Portion Cap Rule, commonly known as the Soda Ban, is unconstitutional.

Mayor Bloomberg announced the Portion Cap Rule (“Rule”) on May 30, 2012 as a proposed amendment to Article 81 of the New York City Health Code to require food service establishments to cap at sixteen ounces the size of cups and containers used to offer, provide and sell sugary beverages. His stated purpose was to address the rising obesity rates in New York City. The Board of Health voted to adopt the Rule on September 13, 2012.

Plaintiffs brought suit in the Supreme Court on October 12, 2012 claiming that the Rule violated separation of powers as defined in Boreali v. Axelrod, Boreali v. Axelrod, 71 N.Y.2d 6, 9-14 (N.Y. 1987), and was arbitrary and capricious, and the Supreme Court agreed, declaring the regulation invalid. Coal. of Hispanic Chambers of Commerce v. Dep’t of Health, No. 653584/12, 2013 N.Y. Misc. LEXIS 1216 at *1 (N.Y. Sup. Ct. Mar. 11, 2013). On appeal, the court affirmed the Supreme Court’s ruling that the Rule violated the separation of powers doctrine of the State Constitution that establishes a boundary between the actions of the legislature and an administrative agency by failing the test set out in Boreali. It stated that the Rule “is one especially suited for legislative determination as it involves difficult social problems which must be resolved by making choices among competing ends.” The court enjoined the Board of Health from implementing and enforcing the Rule, but did not address whether the rule was arbitrary and capricious.

To read the court’s opinion, please see the New York Court’s website, at page 47.

Written by Sarah L. Doyle - Research Assistant
The Agricultural Law Resource and Reference Center
@PSUAgLawCenter
July 31, 2013