Will Enforcement for New Nutrition and Supplement Facts Boxes be Delayed?

Updated June 13, 2017:  Today FDA announced that they will extend the compliance dates for the new nutrition facts labels but they have not announced what the new dates will be.  Here is the information published on the FDA website:

“FDA Intends to Extend Compliance Dates for Nutrition Facts Label Final Rules

In May 2016, the U.S. Food and Drug Administration finalized the Nutrition Facts and Supplement Facts Label and Serving Size final rules and set the compliance date for July 26, 2018, with an additional year to comply for manufacturers with annual food sales of less than $10 million. After those rules were finalized, industry and consumer groups provided the FDA with feedback regarding the compliance dates. After careful consideration, the FDA determined that additional time would provide manufacturers covered by the rule with necessary guidance from FDA, and would help them be able to complete and print updated nutrition facts panels for their products before they are expected to be in compliance.

As a result, the FDA intends to extend the compliance dates to provide the additional time for implementation. The framework for the extension will be guided by the desire to give industry more time and decrease costs, balanced with the importance of minimizing the transition period during which consumers will see both the old and the new versions of the label in the marketplace. The FDA will provide details of the extension through a Federal Register Notice at a later time.” (emphasis added).

 

Original 5/3/17 post: On May 1, 2017 FDA announced a year long delay for compliance with restaurant menu labeling regulations that were to have become effective May 5, 2017. The Interim Final Rule, which will be published in the May 4, 2017 Federal Register lists several reasons for the delay that seem pertinent to the new nutrition and supplement labeling regulations.  Most notably:

Delay reason 1:  “We are taking this action consistent with Executive Orders 13777, 13771, and 13563,…”

Comment: These executive orders call for review of regulations with an eye to the alleviation of “unnecessary regulatory burdens placed on the American people” and to control regulatory costs.

Delay reason 2:   “…The continued, fundamental questions and concerns with the final rule suggest that critical implementation issues, including some related to scope, may not have been fully understood and the agency does not want to proceed if we do not have all of the relevant facts on these matters…”

Comment:  The nutrition labeling regulations are full of vagaries and inconsistencies.  Regulations that are impacted by the new labeling rules, such as those for nutrient content claims, have not even been updated to reflect the rules on which they rely.

There is no doubt that the new rules are complex, expensive, and impose burdensome record keeping requirement for added sugars, folate and vitamin E declarations.  In addition, there are many other valid complaints from industry.  As written about by Hyman, Phelps & McNamara, The American Bakers Association has petitioned FDA to revoke or revise the new rules on dietary fiber.  Other industry groups have asked that the compliance date be delayed to coincide with the Congressional-directed GMO labeling rules that USDA has yet to write for an effective date in 2021.   There have been many articles in trade publications noting that Scott Gottlieb, the nominee for FDA Commissioner stated that he is “philosophically in favor of trying to make sure we do these things efficiently, not only because it imposes undue costs on manufacturers to constantly be updating their labels, but we also have to keep in mind it creates confusion for consumers if the labels are constantly changing.”

I will spare you my rant and list of complaints about the new regulations but I will say that it has been a frustrating task to read, understand and try to implement the new labeling rules for foods and dietary supplements.  Up until now I have doubted that implementation or enforcement of the new nutrition labeling regulations would be delayed.  However, the reasoning behind the menu labeling delay mirrors similar problems with the new nutrition labeling regulations.  I don’t typically place bets but I think there is a very good chance that enforcement of the changes to the nutrition facts boxes will be delayed.  I would expect that the changes to the dietary supplement facts boxes that were part of the same final rule would also be delayed.

Watch this space–we’ll keep you updated!

 

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