Congressional Leaders Request FDA to Exclude Grocery Stores from Menu Labeling Requirements

By Cassandra A. Soltis –

In response to the Food and Drug Administration’s (“FDA’s”) proposed rule on nutrition labeling of standard menu items in restaurants and similar retail food establishments, members of the U.S. Senate and House of Representatives have requested that FDA exclude grocery stores from the menu labeling requirements.  The proposed rule (see our previous post here) would require menu labeling at retail food establishments if they sell restaurant or restaurant-type food and if their primary business activity is the “sale of food” (i.e., including packaged foods) to consumers.  76 Fed. Reg. 19,192, 19,196 (Apr. 6, 2011).  FDA indicated that it would generally expect grocery stores, such as those that prepare and sell restaurant-type food on the premises, to be subject to the menu labeling regulation.  Id. at 19,198. 

However, letters (here and here) from both the Senate and House of Representatives request FDA to follow “Congressional intent” and adopt FDA’s alternative definition of “restaurant or similar retail food establishment,” which would essentially exclude grocery stores from menu labeling.  Under the alternative definition, “restaurant or similar retail food establishment” would mean a retail establishment “where the sale of restaurant or restaurant-type food – as opposed to food in general – is the primary business activity of that establishment.”  Id. 

The letter from Senate members explained that “the plain language of the statute” indicates that grocery stores were not intended to be covered by the menu labeling law.  In addition, the letter stated that requiring such information on foods served in grocery stores “would place a disproportionate cost on grocery store chains . . . because grocery store chains lack the menu standardization of restaurant chains.”  The Senate members also cited to FDA budget constraints and costs passed on to consumers as reasons for adopting the alternative definition. 

The House members noted that “[h]istorically, labeling regulations, such as for nutrition panels, food safety, ingredient, and country-of-origin labeling have been applied differently between supermarkets and restaurants” and that “[t]hese are key reasons why none of the states or municipalities that have enacted menu labeling laws have applied them to supermarkets.”  The House members “urge[d] FDA to adopt the agency’s own alternative to limit restaurant menu labeling regulations to establishments that primarily sell restaurant foods.”