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Economic Analysis: The Delay Of Menu Labeling For Standard Meals Fails The Cost-Benefit Test

Comments of Dr. Mark Cooper, Ph.D Before the Food and Drug Administration

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The 2010 Patient Protection and Affordable Care Act (“ACA”) required the FDA to promulgate a nutrition labeling rule.2 On December 1, 2014, the Food and Drug Administration (FDA) issued a final rule requiring Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments, with an initial compliance date of December 1, 2015.3 On July 10, 2015, the compliance date for the final rule was extended to December 1, 2016. Due to an appropriations measure, the compliance date was thereafter extended to May 5, 2017. On May 4, 2017—one day before the Final Rule was to go into effect—the FDA announced that it was planning to delay the compliance date for the Rule.

FDA later published, on July 3, 2017, an Interim Final Rule proposing an extension of the compliance date, until May 7, 2018. In its Interim Final Rule (IFR), FDA indicates that a primary reason for the extension is to provide flexibility for businesses, but the decision to delay the compliance date was made without new evidence being cited or new comment being taken.

Upon review of the data, this paper concludes that the Interim Final Rule’s extension of the compliance date is irrational from an economic point of view.