Summary
On June 13, 2017, the U.S. Food and Drug Administration (FDA or the Agency) delayed indefinitely the Nutrition Facts and Supplement Facts Label and Serving Size rules (the Rules), which were set to go live on July 26, 2018 for larger companies, and a year later for smaller companies. Beyond a number of formatting changes for packaged foods, including increasing the type size for “calories,” “servings per container,” and the “serving size” declaration, and bolding the number of calories and the serving size declaration, significantly, the Rules would require the inclusion of “added sugars” on the new label. The “added sugars” requirement has been particularly controversial, with some in industry arguing that it compels speech in violation of the First Amendment.
By way of background over the past few months, the Trump administration has delayed or relaxed a handful of Obama administration food rules, including those governing: restaurant and similar retail food establishment menu labeling (see our previous discussions here, here, here, here, and here); the amounts of whole grains and sodium in school lunches (see U.S. Department of Agriculture (USDA) Secretary Perdue’s Proclamation here); and animal welfare standards for organic foods (see here).
Interestingly, the Agency did not announce a timeline for how long it would be delaying the Rules, saying only on its website that it would issue guidance to help industry comply with the food labeling requirements and that FDA “will provide details of the extension through a Federal Register Notice at a later time.”
The Agency’s move to delay the Rules is not terribly surprising, given President Trump's pledge to cut broadly FDA’s regulations, and Commissioner Scott Gottlieb’s indication in his confirmation hearing that he would be open to delaying the Rules in order to align with USDA’s GMO labeling rule (as we previously discussed here). The Agency’s announcement was welcome news to the leading food and beverage groups that sent a letter to U.S. Department of Health and Human Services (HHS) Secretary Dr. Tom Price on March 14, 2017 requesting delay of the Rules from July 2018 until May 2021.
Others in the industry pushed back against FDA’s delay, in light of the time and money already spent preparing to comply with the Rules, with some indicating that they are moving forward with revised labels in spite of the Agency’s recent announcement. For example, Mars Inc., maker of several candy products and Uncle Ben’s rice, noted that it will still be issuing compliant labels on certain products within the next several months, and will be fully compliant by next year.
Given the Trump administration’s inclination to delay, relax, or roll back Obama administration regulations, one has to wonder what other FDA and USDA regulations could be targeted next. One such possibility could be the Agency’s Deeming Rule, which subjects e-cigarettes, cigars, hookah tobacco, and pipe tobacco to the Federal Food, Drug, and Cosmetic Act (FD&C Act) (see our previous discussion here).
We will continue to monitor this issue and provide further updates as more information becomes available.
