Did FDA Illegally Delay Menu Labeling Rules?

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Last month, the Food and Drug Administration announced that it would be delaying the implementation of a rule requiring calorie counts and other nutritional information on the menus of many restaurants for the third time. That decision didn’t sit well with some consumer advocates, including two groups that have filed a lawsuit challenging the delay.

In the complaint [PDF] filed today in U.S. district court in Washington, D.C., the Center for Science in the Public Interest and the National Consumer League claim that the delay of the menu labeling requirement — one day before the rule was supposed to take effect — is illegal and must be vacated.

The groups note that when the FDA issued the Nutrition Labeling Rule as part of the Affordable Care Act, the agency recognized that these requirements “give consumers much needed access to essential nutrition information for a large and growing number of the foods they purchase and consume.”

According to the lawsuit, the FDA’s decision violated the Administrative Procedure Act — which requires agencies to publish a notice of proposed rule making in the Federal Register and provide an opportunity for public comment before formulating, amending, or repealing a rule — by “departing from its prior interpretation of the Affordable Care Act and its prior conclusions about the importance of nutrition labeling without providing a rational explanation.”

In addition, the complaint claims that the agency violated the APA by issuing a delay rule — a final agency action with legally binding effect — “without complying with mandatory rule making procedures, including advance notice and an opportunity for public comment before the Delay Rule took effect.”

The plaintiffs are requesting that the court hold the delay rule to be “arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law, and to have been published without observance of legally required procedure, in violation of the APA.”

They also seek an order vacating the delay rule, and declaring that compliance with the menu labeling rule is required within 15 days of the court’s order.

The FDA told Consumerist that it does not comment on pending litigation.

“The recent delay in the rule is yet another example of the Trump administration’s willingness to accommodate even unfounded and partial industry opposition to the detriment of the health and welfare of people and families across the country,” said Peter Lehner, the Earthjustice senior attorney handling the lawsuit.

“There are monitors that can tell us exactly how many steps we take in a day and how much sleep we get at night, but we are denied the basic right to know how many calories are served at a restaurant,” he said.

The groups say that since the food industry was ready to comply before the delay, it can promptly comply with the rule once it’s reinstated.

Indeed, despite the rule’s delay, some restaurant chains have already put calorie counts on their menus, including major chains like McDonald’s, Panera, and Subway.

Other chains will likely refrain from doing anything until they absolutely have to: The American Pizza Community — a coalition of pizza companies, regional chains, small business franchise owners, suppliers, and others in the business of pizza — applauded the FDA’s decision to delay compliance last month, saying that the “previous approach threatened to impose excessive burdens on thousands of small businesses without achieving meaningful improvements in educating consumers.”