Dive Brief:

• The Food and Drug Administration on Monday extended the compliance deadline for its menu labeling by another year, to May 7, 2018, according to The Shelby Report. The law, which retail and convenience store trade groups argued placed an unfair burden on their members, was set to take effect Friday.
• The FDA said it intends to address concerns raised by retail groups that the law doesn't consider the self-service, highly variable nature of grocery prepared foods. The agency noted it will “consider how we might further reduce the regulatory burden or increase flexibility while continuing to achieve our regulatory objectives.”
• The National Restaurant Association, meanwhile, sharply criticized the delay. “This delay upends plans that have been in motion for years throughout the food industry,” Cicely Simpson, the NRA’s executive vice president of government affairs and policy, told The Shelby Report.

Dive Insight:

It appears mounting pressure from retail trade groups, including an 11th-hour appeal from the National Grocers Association and the National Association of Convenience Stores, helped convince the FDA to put off its menu labeling compliance date. That appeal, filed nearly one month ago, stated that retailers were unable to comply with the law as it was written, that the agency had severely underestimated the amount of time and money retailers would spend complying with the final rule, and that the law placed an unfair regulatory burden on their industries.

According to NGA and the Food Marketing Institute, the cost of implementing the law has exceeded $1 billion and has taken much more time for compliance than the 14.5-million-hour estimate initially issued by FDA.

At the heart of the food retail industry’s objection is the highly variable nature of grocery foodservice. Unlike restaurants, which have a single ordering point, supermarkets offer prepared foods in a variety of different formats at different points throughout the store. Self-service hot and cold bars, grab-and-go cases, freezers and deli counters are just a few of the places where customers get their food. Grocers are also 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 make changes to the menu's labels put it in violation of the law?

Despite these concerns, many retailers had brought themselves into compliance and were ready for this week’s deadline. They may welcome the FDA’s willingness to work with them and to revisit the law, which could see additional amendments and exemptions, but many may feel frustration at having paid for testing and labeling of menu items that might not be around a year from now.

Looking ahead, the FDA’s concession to food retailers will no doubt redouble industry efforts to delay and amend further upcoming regulations, such as the implementation of 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. Given the Trump administration’s distaste for regulations, including FDA pick Scott Gottlieb’s sentiments to this effect, it looks like those wishes stand a chance of being granted.