Dive Brief:

• The Center for Science in the Public Interest and the National Consumers League have filed a lawsuit against the Food and Drug Administration saying its decision to delay the implementation of its menu labeling law is illegal and should be vacated, according to a news release. The FDA, which had set the law’s implementation for May 5, issued its one-year delay order on May 4.
• The lawsuit, which names Health and Human Services Secretary Tom Price and FDA Commissioner Scott Gottlieb as defendants, says the decision violated the Administrative Procedures Act by failing to give advanced notice of the delay, and by not giving the public a chance to comment on the ruling.
• The organizations argue calorie labeling at restaurants, grocery stores and convenience stores is something consumers want, and the measure encourages companies to offer healthier items. Between 2005 and 2011 fast food chains subject to menu labeling laws increased their healthy food choices from 13% to 20% of their overall menus, according to the groups.

Dive Insight:

The consumer groups that filed this lawsuit battled the food industry in the months leading up to the menu labeling law’s May 5th implementation deadline. The delay failed to surprise many observers who have noted the industry’s increased influence over the agency, just as the ensuing lawsuit countering the decision was something many expected.

The Center for Science in the Public Interest and the National Consumers League, collectively represented by Earthjustice, seek to have the FDA’s delay vacated and for the menu labeling law to go into effect 15 days after the court’s decision.

The restaurant industry, which has seen calorie labeling mandated under local laws across the country, supports the rule’s implementation. And many in the supermarket industry, including SpartanNash, which put up digital menu boards in delis and signs throughout its bakery, salad bar and prepared food departments in 83 Family Fare Supermarkets, are already in compliance. Indeed, many retailers had installed all the necessary signs and systems while educating their workers ahead of May 4th when the FDA delayed the law’s implementation for another year.

There are legitimate concerns surrounding the rule. Unlike restaurants, which have a single ordering point, grocery foodservice is highly variable, with prepared foods available at different points throughout the store, and in a variety of different formats. This includes bakery, prepared food bars, grab-and-go-cases, sushi bars and more. Grocers also are frequently changing their menus and ingredients, and offerings often vary from store to store. If a deli manager wants to swap in wheat bread for white bread in a popular sandwich one day, could failure to change store labeling amount to a violation of the law?

A year’s delay could help the FDA and the industry smooth out some of the law’s finer points. Given that grocery and convenience store trade groups view the law as patently unfair, however, they may end up pushing for more delays. Given the Trump administration’s distaste for regulations, industry groups may succeed in delaying or scuttling this and other regulations, including a new Nutrition Facts label, set to take effect in July 2018; mandatory genetically modified ingredients labeling by 2021; and perhaps even the implementation of Food Safety Modernization Act rules.

The success or failure of the newly filed lawsuit, meanwhile, could determine a path forward for consumer groups challenging these delays.