Pursuant to standard FDA regulations, retail restaurants with 20 or more locations doing business under the same name (and offering the substantially same menu) are required to provide nutritional information for standard menu items, including calorie information. But with state and local governments’ recent orders in response to the COVID-19 pandemic forcing restaurants to close their dining rooms and switch to take-out or delivery only, many restaurants are also being forced to make impromptu changes to their menu offerings. While these seemingly innocuous menu changes are relatively easy to implement under ordinary circumstances, labeling changes are far more difficult in the midst of a pandemic that has caused restaurants to struggle substantially on multiple levels.
Recognizing this reality, the FDA has acted quickly to temporarily reduce nutritional and menu labeling restrictions. Specifically, the FDA recently announced that it will not object to restaurants that do not meet the normal menu labeling requirements during the pandemic. These changes are meant to avoid food shortages, keep restaurants open, and avoid wasting food.
The FDA’s efforts to lessen the burden on the food industry has extended beyond restaurant menu labeling. The FDA has also reduced certain labeling requirements on high demand foods, such as eggs. Specifically, the FDA announced reduced restrictions on the “egg safety rule,” which generally requires, among other things, that shell egg producers implement policies to prevent salmonella contamination on farms and avoid the growth of the harmful bacteria during storage and delivery. Now, retail food establishments that sell eggs to consumers—including restaurants and grocery stores–that do not meet the specific requirements of the “egg safety rule” are permitted to sell the eggs so long as they display at the point of purchase specific information including: a statement of identity; the name and place of business of the manufacturer, packer, or distributor; and safe handling instructions for shells that have not been processed to destroy salmonella. The relaxed regulations are meant to expedite the restocking of grocery store shelves and get the eggs to consumers, without waste or delay.
The FDA has also reduced packaged food labeling requirements during the pandemic. While the FDA generally requires nutrition fact panels on packaged food products sold directly to consumers, the FDA has announced that it does not intend to object to a restaurants’ sale of packaged food products (both perishable and non-perishable) that do not contain a Nutrition Facts panel. However, any restaurant selling packaged food must provide: a statement of identity; an ingredient statement; the name and place of business of the food manufacturer, packer, or distributor; net quantity of contents; and allergen information required by the Food Allergen Labeling and Consumer Protection Act. The FDA is also allowing restaurants to reuse original labels from manufacturers that contain this required information.
To be clear, these modifications have not altered, much less eliminated, the substantial FDA regulations governing the food industry. And, the accommodations discussed here likely will only remain in effect during the national emergency. Thus, retail food establishments and manufacturers should assume that general compliance with regulations will be required once local, state, and federal restrictions related to the COVID-19 pandemic are lifted.
More information regarding these changes can be found at the FDA’s website.
This information is intended to inform our clients and other friends about legal developments, including recent decisions of various municipalities, legislative, and administrative bodies. Because of the rapidly changing landscape related to COVID-19, we intend to send out regular updates. The information we provide is not intended as legal advice and viewers/readers should not rely on information contained in these materials to make business or legal decisions. Before making any legal decisions, consult your lawyer. Please do not hesitate to contact us should you need assistance responding to the many issues which have arisen, and will continue to arise, out of this situation.