This week, there were developments in two menu labeling lawsuits about which we reported previously: a lawsuit challenging the U.S. Food and Drug Administration’s (FDA or the Agency) delay of its menu labeling rule (discussed here), and a lawsuit filed by the restaurant, grocery store, and convenience store industries to block New York City (the City) from enforcing its analog of FDA’s delayed menu labeling rule (discussed here).

On Monday, FDA responded to a lawsuit filed in June by the Center for Science in the Public Interest (CSPI) and the National Consumers League (NCL) over the Agency’s delay of its menu labeling rule.  In theircomplaint, CPSI and NCL request that the U.S. District Court for the District of Columbia vacate FDA’s interim final rule delaying the menu labeling rule and declare compliance with the rule to be required within 15 days after the court issues its order.  CSPI and NCL argue that consumers will be harmed if they do not have access to the calorie and other nutrition information required by FDA’s rule, as unhealthful menu options and the inability to access such nutritional information “contribute significantly to the current obesity epidemic and interfere with individuals’ ability to manage chronic disease,” per the groups’ complaint.

By way of background, the Agency’s menu labeling rule (discussed here and here) requires restaurants and “similar retail food establishments” (e.g., convenience stores and grocery stores) that are part of a chain of 20 or more locations and that sell similar menu items to post on menus and menu boards: (1) calorie information; (2) a statement on suggested daily caloric intake; and (3) a statement that written nutrition information is available upon request (and provide such information upon request).

In its motion to dismiss, the Agency argues, among other things, that CSPI’s and NCL’s suit is not ripe, and that “[t]he court should, accordingly, avoid prematurely entangling itself in this ongoing agency matter” because there is “no perceptible harm to plaintiffs that would result from waiting” for FDA to complete its review of public comments regarding the delay.

Also on Monday, FDA asked the U.S. District Court for the Southern District of New York (Southern District) to block New York City from enforcing its analog of the Agency’s delayed menu labeling rule (discussed here).  As explained previously, under the City’s rule, chain convenience stores, grocery stores, and restaurants with 15 or more locations nationwide are required to disclose calorie counts and full nutritional information (i.e., the same as FDA’s rule except for the location number threshold).  Absent the Southern District granting industry a reprieve, the City is expected to begin issuing notices of menu labeling rule violations subject to fines on August 21, 2017.

Recall that on July 14, 2017, the National Restaurant Association’s (NRA) Restaurant Law Center (RLC), the Food Marketing Institute (FMI), the National Association of Convenience Stores (NACS), and the New York Association of Convenience Stores (NYACS) jointly filed suit in the Southern District to halt the City from implementing its menu labeling rule.  In the suit, the groups representing restaurants, grocery stores, and convenience stores allege, among other things, that the City’s rule is preempted both expressly and impliedly by FDA’s menu labeling rule, and thus seek to preliminarily and permanently enjoin the City from enforcing its version of the same.

Explaining the reason for its involvement in the case, Agency spokeswoman Jennifer Corbett Dooren noted that “FDA intends to utilize the authority given to it by Congress to craft uniform national standards for food labeling.”  Joon H. Kim, acting U.S. attorney for the Southern District, filed a statement of interest in the case on FDA’s behalf.  Like plaintiffs, the Agency contends that its delayed menu labeling rule does, in fact, preempt the City’s analog of the same.  A hearing in the case is scheduled for later today. 

We will continue to monitor these and other industry developments and provide more information as it becomes available.