Philadelphia Petitions FDA for Exemption from Menu Labeling

By Susan J. Matthees –

We recently learned that on August 30, 2011, Philadelphia petitioned FDA pursuant to FDC Act § 403A(b) to request that FDA exempt Philadelphia from federal menu labeling requirements.  As far as we know, this is the first petition for an exemption from federal menu labeling requirements. 

As you may recall, section 4205 of the Patient Protection and Affordable Care Act of 2010 implemented FDC Act §403(q)(5)(H), which requires certain restaurants and vending machines to disclose nutrition information.  The law also amended FDC Act § 403A to preempt any state or local menu labeling requirements not identical to federal menu labeling requirements, unless the state or local government successfully petitions FDA for an exemption.  The city of Philadelphia enacted its own menu labeling requirements in 2008, and in the petition asks FDA for an exemption from FDC Act § 403A so that the city can continue to use its current menu labeling requirements. 

According to the petition, Philadelphia’s labeling requirements are “in large part consistent” with federal requirements, but Philadelphia’s ordinance requires more nutrition information to be displayed directly on the menu than federal law.  Philadelphia’s ordinance requires the amount of calories, sodium, saturated fat, trans fat, and carbohydrates to be listed on the menu, whereas federal law requires only calories to be included on the menu.  Under federal law, information on sodium, saturated fat, trans fat, carbohydrates, and other nutrients must be included in written form and made available upon request.  Philadelphia argues that providing nutrition information on the menu is the “only effective means” of communicating nutrition information to consumers. 

Philadelphia believes that by providing information on calories only, the federal law does not adequately address the city’s “public health crisis.”  The city is particularly concerned about requiring disclosure of the amount of sodium in foods.  According to the petition, Philadelphia County has the highest prevalence of hypertension and cardiovascular disease among the counties that contain one of the 10 largest US cities.  Citing studies detailing harmful effects of excess sodium consumption, Philadelphia argues that disclosing the amount of sodium directly on menus is necessary to reduce sodium consumption and a “vital tool to combat the high rates of hypertension, heart disease, and stroke” in Philadelphia.  Although the city acknowledges mixed success for menu labeling (see our previous post here), the petition cites some studies that have shown that nutrition labeling has a positive impact on consumer’s choices as hope that Philadelphia’s menu labeling requirements will influence consumers to chose lower sodium foods. 

In a clever move, Philadelphia uses FDA’s own initiative to reduce sodium to argue for the city’s menu labeling ordinance.  As we reported last month, FDA and FSIS are seeking information on issues related to reduction of dietary sodium.  Philadelphia offers its menu labeling as an opportunity to study sodium disclosure as a means to reduce sodium consumption.  Because Philadelphia is the only community in the nation that requires sodium information to be included on menus, the city argues that it provides a unique opportunity to study how disclosing information on sodium impacts overall consumption, and therefore should be granted an exemption.