Photo by King Huang on Flickr.
On May 5, 2017, the FDA’s nutrition and calorie labeling rule for the menus of chain restaurants and similar establishments was scheduled to go into effect. The day before, the FDA announced that they would delay enforcing those rules for another year, marking the third such postponement since the rules were created in 2014.
As a result, consumers will still lack access to nutrition facts on menus of several restaurant chains. Which means, they won’t be able to properly determine how many calories and nutrients they are ingesting for each meal until that information is posted.
Consequently, the delay didn’t sit well with some food consumer watchdog groups, like the Center for Science in the Public Interest (CSPI) and the National Consumer League (NCL), who have sued the FDA in federal court under the claim that the most recent delay was illegal.
In the lawsuit, which was obtained by Consumerist, the CSPI and NCL claim that the FDA violated the Administrative Procedure Act (APA) by immediately posting the delay without any notification or allowance for public discussion. Under the APA, agencies like the FDA need to publish a notice of a proposed rule or change in a current regulation in the Federal Register and allow for public comment before amending, creating, or repealing the rule. The FDA didn’t do either of those things, and thus broke the law.
Because of this, the CSPI and NCL have asked the court to declare the newest delay to be “arbitrary, capricious, an abuse of discretion.” They would also like the court to bar the delay from taking place and for compliance to be enforced within 15 days of a judge’s decision.
The FDA declines to comment on any pending lawsuits, but several major food chains, including Subway and McDonald’s, have already begun reporting their calories on menus. At least we’ll be able to get nutritional information at some of our favorite chains before this whole mess is sorted out.