FDA Updates Menu Labeling Guidance to Address Added Sugars and Third-Party Platforms

On December 13, the U.S. Food and Drug Administration (FDA or the Agency) issued a revised supplemental guidance titled “Menu Labeling: Supplemental Guidance for Industry (Edition 2).” This guidance amends the first edition of the guidance document titled “Menu Labeling: Supplemental Guidance,” issued in May 2018. The new guidance added two new questions and answers to address recent stakeholder inquiries regarding the implementation of nutrition labeling required for foods sold in covered establishments. Specifically, the guidance adds Questions and Answers 5.8 and 7.5, addressing the voluntary declaration of “added sugars” as part of the additional written nutrition information under 21 CFR 101.11(b)(2)(ii)(A) and the voluntary use of menu labeling requirements on online third-party food ordering platforms.

FDA’s menu labeling regulations (first established in December 2014 and enacting section 403(q)(5)(H) of the Federal Food, Drug, and Cosmetic Act), are codified at 21 CFR 101.11 and apply to “covered establishments.” “Covered establishments” consist of restaurants or similar retail food establishments that are part of a chain with 20 or more locations doing business under the same name offering substantially similar menu items, or any restaurant that voluntarily registers with FDA to be covered by the federal menu labeling requirements.

FDA’s recent guidance is a revision of the first edition of the guidance document entitled, “Menu Labeling: Supplemental Guidance for Industry.” According to FDA, FDA is adding new Questions and Answers 5.8 and 7.5 to this guidance in response to frequently asked questions regarding the menu labeling requirements and to discuss the voluntary use of the menu labeling requirements to help consumers make informed and healthful decisions when ordering their meals online using a third-party platform.

• New Question and Answer 5.8 addresses whether covered establishments that use third-party platforms (TPP), such as third-party online ordering websites and delivery applications, can provide nutrition information for standard menu items ordered through these platforms. FDA verified that nutrition information can be provided for standard menu items ordered through a TPP, as this information can aid consumers in making informed and healthier choices. FDA’s update is a recognition that these online platforms have grown more popular since the menu labeling requirements were initially passed in 2014. The Agency encourages covered establishments to provide this information, especially food establishments already providing this information on their websites and those for which this information is already easily accessible.
• New Question and Answer 7.5 details whether a covered establishment can choose to declare added sugar as part of additional written nutrition information for standard menu items. Under 21 CFR 101.9, added sugars are a required nutrient in the Nutrition Facts labeling for packaged foods, but not required nutrition information under the menu labeling requirements of 21 CFR 101.11(b)(2)(ii). FDA clarified that divulging the amount of added sugar in a standard menu item can help consumers meet current dietary recommendations and stay within caloric limits. As such, FDA encourages covered establishments to voluntarily provide the gram amount of added sugars for standard menu items.

FDA noted it plans to continue issuing successive editions of the menu labeling guidance document, revising existing questions and answers as well as including new questions and answers. Stakeholders interested in commenting on the supplemental guidance will have until February 12, 2024 to submit comments to FDA.

Importantly, this guidance update marks the eighth food labeling guidance document issued by the Agency this year, indicating the Agency’s continued focus on the role of food labeling in facilitating healthy dietary practices for Americans. Other updates have included guidance regarding the labeling of infant formula, labeling of certain beers subject to FDA’s jurisdiction, labeling of plant-based milk alternatives, and Questions and Answers about Dietary Guidance Statements in Food Labeling.

All companies engaged in the marketing of food and nutrition products should be monitoring these developments as they consider future marketing and labeling strategies intended for the U.S. market.

© Arnold & Porter Kaye Scholer LLP 2023 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.