After repeatedly delaying the requirement that restaurants post calorie counts and other nutritional information on their menus — and after being sued by groups alleging that these delays are against the law — the Food and Drug Administration has finally agreed to start enforcing the menu labeling rule, beginning in May 2018.

The rule, which had already been kicked down the road twice by the FDA, was supposed to go into effect in May 2017, but only days before the deadline the FDA said the Trump administration was reconsidering the long-delayed rule because it “did not have all the relevant facts,” even though the agency had already had nearly seven years to come to that conclusion.

In June, the Center for Science in the Public Interest and the National Consumers League sued the agency after it pushed back an earlier enforcement deadline just one day before enforcement was set to begin.

Then in August, Earthjustice — the law firm representing CSPI and NCL — and the Department of Justice agreed to stay further proceedings after FDA Commissioner Scott Gottlieb said there would be no more delays and no changes to the menu labeling requirements.

Moving forward

Today, a U.S. district court judge in Washington, D.C. approved an agreement [PDF] that will put that lawsuit on ice. However, if the FDA announces any other delays of enforcement or doesn’t issue guidance to the industry — clarifying the menu labeling rule and aiding implementation — by the end of 2017, or weakens its requirements, the complaint could go forward.

Advocates for menu labeling praised the agreement, saying consumers need information about what they’re eating.

“Since Americans are getting more food outside the home than ever before, having access to calorie information at chain restaurants is important for consumers who want to maintain a healthy weight and reduce their risk of diet-related disease,” said CSPI vice president for nutrition Margo G. Wootan, noting that most of the biggest chain restaurants already provide calorie counts on menus and menu boards.

“Responsible companies have already invested in compliance,” said Sally Greenberg, executive director NCL. “As frustrating as this process has been, we’re glad that the end of the long campaign for menu labeling is now in sight.”

Our colleagues at Consumers Union also applauded the news.

“With these new labels, consumers will be able to find calorie counts in many more places,” says William Wallace, policy analyst for Consumers Union, the policy and mobilization division of Consumer Reports. “After long delays, we’re pleased that chain restaurants and other food retailers will be required to give consumers this critical nutrition information starting in the spring.”

Trouble ahead?

But proponents of calorie counts on menus warn that there could still be trouble ahead, pointing to a bill introduced earlier this year called the Common Sense Disclosure Act. If it becomes law, it would allow takeout chains — like pizza restaurants — to post their nutritional information solely online, and not at the actual restaurant.

The pending legislation would also not require the online menu be visible when you place an order, whether on an app or through social media. Thus, a restaurant could bury this info somewhere on the eatery’s site.

In addition, the bill gets rid of a section of the rule that requires restaurants to display the number of calories contained in the standard menu item, as “usually prepared and offered for sale,” and replace it with language that would allow a business to list the calories for say, half a muffin, or one slice of pizza, instead of the whole thing.

“We hope Congress resists the efforts of outlier companies, notably Domino’s and other pizza chains, to weaken menu labeling,” Wootan said.

A history of delays

The FDA first finalized the menu labeling rule more than three years ago, slating enforcement and compliance to begin by the end of 2015.

But then the agency delayed that deadline — not oce, but three times, pushing it first to 2016, then 2017, and again in May, to 2018. That last delay is what prompted CSPI and NCL’s lawsuit in June.

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