On Friday, September 29, the Food and Drug Administration (“FDA”) proposed to give food manufacturers an additional year and a half to comply with the revised Nutrition Facts regulations that were published in May 2016. Earlier this year, the FDA announced it would delay enforcement of the revised Nutrition Facts regulations, but did not give a specific new compliance date. Friday’s proposal would extend the compliance date from July 26, 2018 to January 1, 2020 for manufacturers with $10 million or more in annual food sales, and from July 26, 2019 to January 1, 2021 for manufacturers with less than $10 million in annual food sales. FDA is seeking comment on its proposed compliance date extension; the comment period closes on November 1, 2017.

In discussing its motivation to extend the compliance dates, FDA notes that:

[c]ompanies and trade associations with members covered by the rules have informed [FDA] that they have significant concerns about their ability to update all their labels by the compliance dates due to issues regarding (among other things) the need for upgrades to labeling software, the need to obtain nutrition information from suppliers, the number of products that would need new labels, and a limited time for reformulation of products.

Food manufacturers that are creating new products have a choice to make – use the original Nutrition Facts label or the revised one (some food manufacturers have already changed their labels). Food companies choosing the former option should monitor this proposed rulemaking to ensure their product labels are in compliance by the date finally set by the FDA. In addition, all food manufacturers should monitor the U.S. Department of Agriculture’s (“USDA”) rulemaking regarding the disclosure of genetically engineered food. The USDA is supposed to publish its final rule on disclosing genetically engineered food by the end of July 2018. FDA’s proposed compliance date extension to 2020 may have been influenced by a desire to align with USDA’s upcoming label updates.

As a refresher, the revised Nutrition Facts regulations update a number of labeling requirements, including increasing the type size for the calorie declaration, removing the “calories from fat” declaration, requiring a declaration of added sugars, changing the vitamins required to be declared, and some serving sizes have changed (e.g., a serving of ice cream increased from 1/2 cup to 2/3 cup), among other requirements.

                    Alli Condra focuses her practice on food safety, labeling, and other regulatory issues in the food & beverage and restaurant industries, representing clients in matters with the FDA, USDA, and state and local food and agriculture agencies. Alli can be reached via email at AllisonCondra@dwt.com or directly at 503.778.5261.