As reported in our previous Jones Day Update, FDA published an interim final rule extending the compliance date of the menu labeling final rule a day before restaurants and other retail food establishments would have been required to list calorie information on their menus and menu boards. This was not the first time the compliance date for this rule was postponed; FDA has repeatedly delayed it since December 1, 2015, when it was initially set to go into effect.
As a result of FDA's most recent postponement of the rule, two nonprofit consumer advocacy groups, the Center for Science in the Public Interest and the National Consumers League, sued FDA on June 7, 2017. The groups claimed the interim final rule violated the Administrative Procedure Act because it did not rationally explain (i) why it was changing its interpretation of the requirements set forth in the Affordable Care Act, which directed FDA to promulgate the rule, or (ii) why it was changing its conclusions about the importance of mandating nutrition labeling to protect public health, as incorporated in the rule. The groups also claimed FDA failed to provide interested persons an opportunity to comment on the interim final rule. For these reasons, the groups claimed the interim final rule was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" and requested the court to vacate the interim final rule and declare a certain date for compliance with the rule.
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