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Now that the FDA has (yet again) decided to delay enforcement of its menu labeling regulations for another year (and possibly to change the regulations entirely), one question seems to be on everyone’s minds: will we need to comply with state and local menu labeling laws? The answer is thorny and may be the subject of future dispute.

According to the FDA, its regulations preempt “certain non-identical State and local nutrition requirements.” The agency interprets this to mean that states and local governments may not impose any additional or different requirements for food sold in an establishments covered by their regulations, i.e. restaurants and similar retail food establishments that are part of a chain of 20 or more locations, or other such establishments that elect to be covered.  In other words, the FDA regulations establish uniform national standards for menu labeling at chain restaurants and certain retail food establishments with 20 or more locations nationwide.

Even so, states and localities, can still take some actions on menu labeling. One, they can pass and enforce menu labeling laws that include requirements that are identical to the FDA regulations. Two, they can pass and enforce menu labeling requirements on restaurants or other establishments that are not covered by the FDA regulations, i.e. restaurants or retail food establishments with 19 or fewer locations nationwide, or establishments that are otherwise exempt from the FDA regulations, like schools hospitals and transportation carriers. In the past decade, states and localities around the country have done both.

The FDA’s decision to postpone enforcement of its regulations does not necessarily affect the timing of states’ or localities’ enforcement of their own laws – even where the laws are identical. It could, however, create some inconsistency and confusion – for example, where a restaurant is subject to menu labeling if it has 19 locations, but not 20 locations. Therefore, states and localities may choose to hold off on their enforcement efforts pending federal enforcement. California, for example, changed its menu labeling laws to conform to the federal rules, and provided that they are operative only upon the compliance date specified at the federal level. On the other hand, if the FDA keeps putting off enforcement of its regulations, states and localities may argue that the federal law does not have sufficient weight to preempt their efforts.

For now, the easiest route for food establishments may be to voluntarily register with the FDA and choose to be covered by its menu labeling provisions. If facilities do so, they will (at least for now) be subject only to the FDA requirements, not state or local laws,[1] and (at least until May 7, 2018) not subject to FDA enforcement.

Some of you may also be wondering whether the American Health Care Act (AHCA) would eliminate federal menu labeling altogether. In theory, it could. AHCA would repeal and replace the Affordable Care Act, from which the FDA menu labeling regulations emanate. The House version of AHCA, however, does not address the section of the ACA concerning menu labeling – meaning that it would stay intact—but we will see what happens in the Senate.

[1] Subject to some exceptions related to food safety and certain components of food.