On April 17, 2017, the National Restaurant Association sent a letter to members of Congress opposing the Common Sense Nutrition Disclosure Act (H.R. 772/S. 261). Specifically, the organization is claiming that the bill would negatively affect federal preemption and legal liability protections that were included in the original statute; and grocery and convenience stores are seeking an exemption from the menu-labeling regime.
I’d like to take this opportunity to provide some clarification.
First, it’s important to remember that this is bipartisan, bicameral legislation that passed the House last Congress by a 266-144 vote. In fact, the National Restaurant Association actively participated in final legislative negotiations on this very bill, which it now claims to be problematic. The Manager’s Amendment, which included specific NRA provisions, passed overwhelmingly by a vote of 309-100.
Second, what is true is that the Food and Drug Administration’s (FDA) regulations set to be enforced on May 5, 2017 fail to protect business owners and employees from civil and criminal penalties including thousands of dollars in fines and/or jail time, as well as class action lawsuits.
How does federal preemption apply to menu labeling?
In 2010, Congress enacted calorie-labeling standards for chain restaurants and similar retail food establishments with 20 or more locations, which included a federal preemption provision. This provision is clear: states, cities, and other local governments only have the power to pass or implement calorie menu-labeling requirements that are exactly the same as the federal requirements, and may only pass or implement different requirements if they request and obtain specific permission from FDA. This includes identical effective and compliance dates.
Does H.R. 772 amend federal preemption?
No. This bill does not amend the preemption provision in the underlying statute, which ensures, as indicated above, that no state or political subdivision of a state may directly or indirectly establish or enforce: “any requirement for nutrition labeling of food that is not identical to the requirement of section 343(q) of this title …”(21 U.S.C. 343-1(a)(4)).
What happens if H.R. 772 becomes law?
If President Trumps signs H.R. 772 into law, FDA would be charged with revising the menu-labeling rule in accordance with the amended statute, assimilating stakeholder feedback, and issuing new effective and compliance dates. This means that no state, city, or local government would be able to implement menu-labeling regulations identical with the federal regulations until the new compliance date of the revised federal regulations.
Could states attempt to get around this federal preemption?
A state, city, or local government might argue in court that it should be permitted to enforce its own identical requirements if the federal compliance date is delayed, but that argument will likely fail based on recent precedent. At least two courts have rejected similar arguments in Backus v. Nestle USA, 167 F Supp 3d 1068 (N.D. Cal. 2016) and Hawkins v. AdvancePierre Foods, Inc., 2016 WL 6611009 (S.D. Cal. 2016).
Are grocery and convenience stores seeking an exemption from menu-labeling requirements?
No. The trade associations representing the grocery and convenience store industries – Food Marketing Institute (FMI), National Grocers Association (NGA), and National Association of Convenience Stories (NACS) – are on record strongly supporting H.R. 772 as appropriately revising the existing menu-labeling regulations to accommodate their business models and/or menu variability. They want to comply with regulations that meet this common-sense test.
This is further reason why we must pass H.R. 772 before these burdensome, onerous regulations come down on small business owners across the country and jeopardize the ability for consumers to have access to nutrition information in accordance with the way they purchase their meals be that in store, over the phone, online, or by an app. If you have any additional questions, please contact Megan Perez in my office at email@example.com.
Cathy McMorris Rodgers
Member of Congress