The COVID-19 emergency has impacted all aspects of the food and beverage industry, and restaurants are no exception. Realizing the essential economic and food service roles restaurants play — and that restaurants’ needs have shifted due to changes in consumer behavior, social distancing orders and forced closures — the U.S. Food and Drug Administration has temporarily adjusted its policies.
Permission to Sell Foods, Once Destined for Restaurants, That Lack Nutrition Labeling
On March 26, 2020, FDA issued guidance and temporarily changed the agency’s enforcement policy for food labeled for sale only to restaurants, such as bulk ingredients or whole food products that are not sold in a retail store.
Prior to this change in policy, these foods purchased by restaurants were not transferable or salable to consumers because they lacked nutrition facts information. However, FDA relaxed this policy for a limited time and is allowing broad discretion so long as certain information is provided on the packaging.
Restaurants may sell bulk packaged food to customers and manufacturers with inventory labeled for restaurant use if labels contain the following:
- Statement of identity
- Ingredients
- Name of the food manufacturer, packer or distributor
- Net quantity of contents
- Allergen information
The benefit of this change is, if properly labeled, food may be sold to grocery stores, direct to customers or to other restaurants. Importantly, this rule change also applies to manufacturers who may have inventory and continue to make products labeled for restaurant use.
Manufacturers and restaurants considering this option should carefully review the label prior to sending.
Finally, based on current guidance, FDA will not object to further production of food labeled solely for use in restaurants if sold directly to consumers.
Compliance With Food Menu Labeling Provisions of the FD&CA
The 2010 Affordable Care Act (ACA) amended the Federal Food, Drug, and Cosmetic Act (FD&CA) on March 23, 2010, to require restaurants to begin labeling menu items with caloric information and maintain nutritional information available upon request. This requirement applies to restaurants with 20 or more locations and the deadline for compliance was May 7, 2018.
COVID-19, however, has changed the industry. Some restaurants can offer only limited menu items or had to switch to delivery or curbside service only. Seeing this as the new normal, FDA temporarily suspended enforcement of the menu labeling requirements for restaurants in April 2020 guidance. What this means for industry is that restaurants can create new menu items and establish new locations without worrying about making caloric or nutritional information available. Although this extends only to the COVID-19 emergency, it should allow restaurant operators the flexibility to operate without FDA enforcement on these issues.
McGuireWoods’ food and beverage team will continue to monitor developments. Team lawyers have experience helping restaurants, chains and franchisees in a full-service capacity, from acquisitions and sales, to regulatory compliance. Additionally, McGuireWoods has a 24-hour hotline clients can call for answers to time-sensitive food safety/labeling and product labeling inquiries. This service provides real-time answers to questions on topics such as product labeling, manufacturing practices and regulatory compliance. Email [email protected] or call +1 804 775 7878.
McGuireWoods has published additional thought leadership related to how companies across various industries can address crucial COVID-19-related business and legal issues.