FDA provides temporary labeling flexibility for menus, packaged food

As a result of the COVID-19 pandemic, restaurants and food manufacturers may have food not labeled for retail sale that they wish to sell at retail. For example, restaurants may have purchased ingredients that they can no longer use to prepare restaurant food and instead wish to sell to their customers. To facilitate the distribution of food during the COVID-19 pandemic, the U.S. Food and Drug Administration (FDA) has released a guidance document, Guidance for Industry: Temporary Policy Regarding Nutrition Labeling of Certain Packaged Food During the COVID-19 Public Health Emergency, to provide restaurants and food manufacturers with flexibility regarding nutrition labeling of certain packaged food.

For food manufacturers that have inventory on hand that is labeled for use in restaurants, the FDA does not intend to object to the sale of packaged food that lacks a Nutrition Facts label by food manufacturers. Similarly, for restaurants that wish to sell packaged food to consumers directly, or to other businesses for sale to consumers, the FDA does not intend to object if the packaged food lacks a Nutrition Facts label. In both cases, the food can’t have any nutrition claims, but must contain other required information on the label, including the following, as applicable:

• A statement of identity
• An ingredient statement
• The name and place of the business of the food manufacturer, packer, or distributor
• Net quantity of contents
• Allergen information required by the Food Allergen Labeling and Consumer Protection Act

Finally, if retail packaging for certain food products is unavailable, the FDA does not intend to object to the further production of food labeled for use in restaurants that is intended to be sold other than to restaurants until retail packaging is available. Although the guidance is being implemented immediately, it remains subject to comment according to the agency’s good guidance practices.

Separate from this guidance, the FDA intends to work cooperatively with manufacturers for the remainder of the year regarding using updated Nutrition and Supplement Facts labels and will not focus on enforcement actions during this time. The FDA previously announced that it would do so for the first six months following the Jan. 1, 2020, compliance date.

The FDA has also released a guidance document, Temporary Policy Regarding Nutrition Labeling of Standard Menu Items in Chain Restaurants and Similar Retail Food Establishments During the COVID-19 Public Health Emergency, to provide temporary flexibility to chain restaurants and similar retail food establishments currently required to provide nutrition information, including calories, on menus and menu boards.

FDA regulations require that restaurants and similar retail food establishments that are part of a chain with 20 or more locations, doing business under the same name, and offering for sale substantially the same menu items are required to provide nutrition information (including calorie declarations) for standard menu items on menus and menu boards.

However, the FDA is aware that some of these covered establishments are temporarily changing business practices as a result of the pandemic. For example, some dine-in operations are switching to takeout only, which may require changes in online ordering portals and printed menus. Because calorie information is required to be declared for standard menu items when a consumer makes a selection, establishments may have difficulty providing this information during a rapid transition to a takeout business practice. Additionally, some of these establishments may be experiencing temporary disruptions in the food supply chain, which may lead to different menus or substitutions that could affect the accuracy of the nutrition information. To provide flexibility to these chains covered by menu labeling requirements, the FDA will not object if establishments do not meet menu labeling requirements during this public health emergency.

This policy change will remain in effect only for the duration of the public health emergency.