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Union Calendar No. 360 

115TH CONGRESS 

2D SESSION H. R. 772 

[Report No. 115–486] 

To amend the Federal Food, Drug, and Cosmetic Act to improve and clarify 

certain disclosure requirements for restaurants and similar retail food 

establishments, and to amend the authority to bring proceedings under 

section 403A. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 31, 2017 

Mrs. MCMORRIS RODGERS (for herself, Mr. ALLEN, Mr. BARLETTA, Mr. 

BLUM, Mr. BUCSHON, Mr. CA ́RDENAS, Mr. COLLINS of New York, Mr. 

COLLINS of Georgia, Mr. CRAWFORD, Mr. CUELLAR, Mr. GOSAR, Mr. 

HARRIS, Mrs. HARTZLER, Mr. HUDSON, Ms. JENKINS of Kansas, Mr. 

JONES, Mr. KIND, Mr. LATTA, Mr. MOOLENAAR, Mr. MOONEY of West 

Virginia, Mr. MULLIN, Mr. NEWHOUSE, Mr. PEARCE, Mr. POE of Texas, 

Mr. ROTHFUS, Ms. SINEMA, Mr. SMITH of New Jersey, Ms. STEFANIK, 

Mr. VALADAO, Mrs. WAGNER, Mr. WALBERG, Mrs. WALORSKI, Mrs. 

MIMI WALTERS of California, Mr. WALZ, Mr. WESTERMAN, and Mr. 

YOUNG of Iowa) introduced the following bill; which was referred to the 

Committee on Energy and Commerce 

JANUARY 8, 2018 

Additional sponsors: Mrs. BROOKS of Indiana, Mr. LANCE, Mr. AGUILAR, Mr. 

HOLDING, Mr. ROKITA, Mr. THOMAS J. ROONEY of Florida, Mr. CARTER

of Georgia, Mr. LUCAS, Mr. BARR, Mr. FERGUSON, Mr. ROE of Tennessee, Mr. CARTER of Texas, Mr. TURNER, Ms. TENNEY, Mr. BUCK, 

Mr. GALLAGHER, Mr. POSEY, Mr. WOMACK, Mr. SHUSTER, Mr. LUETKEMEYER, Mr. GIBBS, Mr. KING of Iowa, Mr. RUSSELL, Mr. GRIFFITH, Mr. 

MITCHELL, Mr. LEWIS of Minnesota, Mr. RUTHERFORD, Mr. BILIRAKIS, 

Mr. KINZINGER, Mr. FLEISCHMANN, Mr. BUDD, Mr. LAMBORN, Mr. 

HIGGINS of Louisiana, Ms. HERRERA BEUTLER, Mr. SMITH of Missouri, 

Mr. GROTHMAN, Mr. CRAMER, Mr. JOYCE of Ohio, Mr. DUNN, Mrs. 

LOVE, Mr. MESSER, Mr. MURPHY of Pennsylvania, Mr. SANFORD, Mr. 

HARPER, Mr. ROUZER, Mr. SHIMKUS, Mr. CHABOT, Mr. WALKER, Mr. 

FITZPATRICK, Mr. RATCLIFFE, and Mr. ISSA


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JANUARY 8, 2018 

Reported with an amendment, committed to the Committee of the Whole 

House on the State of the Union, and ordered to be printed 

[Strike out all after the enacting clause and insert the part printed in italic] 

[For text of introduced bill, see copy of bill as introduced on January 31, 2017] 

A BILL 

To amend the Federal Food, Drug, and Cosmetic Act to 

improve and clarify certain disclosure requirements for 

restaurants and similar retail food establishments, and 

to amend the authority to bring proceedings under section 403A. 


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1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Common Sense Nutri5 tion Disclosure Act of 2017’’. 

6 SEC. 2. AMENDING CERTAIN DISCLOSURE REQUIREMENTS 

7 FOR RESTAURANTS AND SIMILAR RETAIL 

8 FOOD ESTABLISHMENTS. 

9 (a) IN GENERAL.—Section 403(q)(5)(H) of the Federal 

10 Food, Drug, and Cosmetic Act (21 U.S.C. 343(q)(5)(H)) is 

11 amended— 

12 (1) in subclause (ii)— 

13 (A) in item (I)(aa), by striking ‘‘the num14 ber of calories contained in the standard menu 

15 item, as usually prepared and offered for sale’’ 

16 and inserting ‘‘the number of calories contained 

17 in the whole standard menu item, or the number 

18 of servings (as reasonably determined by the res19 taurant or similar retail food establishment) and 

20 number of calories per serving, or the number of 

21 calories per the common unit division of the 

22 standard menu item, such as for a multiserving 

23 item that is typically divided before presentation 

24 to the consumer’’; 


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1 (B) in item (II)(aa), by striking ‘‘the num2 ber of calories contained in the standard menu 

3 item, as usually prepared and offered for sale’’ 

4 and inserting ‘‘the number of calories contained 

5 in the whole standard menu item, or the number 

6 of servings (as reasonably determined by the res7 taurant or similar retail food establishment) and 

8 number of calories per serving, or the number of 

9 calories per the common unit division of the 

10 standard menu item, such as for a multiserving 

11 item that is typically divided before presentation 

12 to the consumer’’; and 

13 (C) by adding at the end the following flush 

14 text: 

15 ‘‘In the case of restaurants or similar retail food es16 tablishments where the majority of orders are placed 

17 by customers who are off-premises at the time such 

18 order is placed, the information required to be dis19 closed under items (I) through (IV) may be provided 

20 by a remote-access menu (such as a menu available 

21 on the internet) as the sole method of disclosure in22 stead of on-premises writings.’’; 

23 (2) in subclause (iii)— 


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1 (A) by inserting ‘‘either’’ after ‘‘a res2 taurant or similar retail food establishment 

3 shall’’; and 

4 (B) by inserting ‘‘or comply with subclause 

5 (ii)’’ after ‘‘per serving’’; 

6 (3) in subclause (iv)— 

7 (A) by striking ‘‘For the purposes of this 

8 clause’’ and inserting the following: 

9 ‘‘(I) IN GENERAL.—For the purposes of this 

10 clause’’; 

11 (B) by striking ‘‘and other reasonable 

12 means’’ and inserting ‘‘or other reasonable 

13 means’’; and 

14 (C) by adding at the end the following: 

15 ‘‘(II) PERMISSIBLE VARIATION.—If the res16 taurant or similar food establishment uses such 

17 means as the basis for its nutrient content disclo18 sures, such disclosures shall be treated as having 

19 a reasonable basis even if such disclosures vary 

20 from actual nutrient content, including but not 

21 limited to variations in serving size, inadvertent 

22 human error in formulation or preparation of 

23 menu items, variations in ingredients, or other 

24 reasonable variations.’’; 

25 (4) by amending subclause (v) to read as follows: 


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1 ‘‘(v) MENU VARIABILITY AND COMBINATION

2 MEALS.—The Secretary shall establish by regulation 

3 standards for determining and disclosing the nutrient 

4 content for standard menu items that come in dif5 ferent flavors, varieties, or combinations, but which 

6 are listed as a single menu item, such as soft drinks, 

7 ice cream, pizza, doughnuts, or children’s combina8 tion meals. Such standards shall allow a restaurant 

9 or similar retail food establishment to choose whether 

10 to determine and disclose such content for the whole 

11 standard menu item, for a serving or common unit 

12 division thereof, or for a serving or common unit di13 vision thereof accompanied by the number of servings 

14 or common unit divisions in the whole standard 

15 menu item. Such standards shall allow a restaurant 

16 or similar retail food establishment to determine and 

17 disclose such content by using any of the following 

18 methods: ranges, averages, individual labeling of fla19 vors or components, or labeling of one preset standard 

20 build. In addition to such methods, the Secretary may 

21 allow the use of other methods, to be determined by 

22 the Secretary, for which there is a reasonable basis 

23 (as such term is defined in subclause (iv)(II)).’’; 

24 (5) in subclause (x)— 


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1 (A) by striking ‘‘Not later than 1 year after 

2 the date of enactment of this clause, the Sec3 retary shall promulgate proposed regulations to 

4 carry out this clause.’’ and inserting ‘‘Not later 

5 than 1 year after the date of enactment of the 

6 Common Sense Nutrition Disclosure Act of 2017, 

7 the Secretary shall issue proposed regulations to 

8 carry out this clause, as amended by such Act. 

9 Final regulations to carry out this clause, in10 cluding any regulations promulgated before the 

11 date of enactment of the Common Sense Nutri12 tion Disclosure Act of 2017, shall not take effect 

13 until such compliance date as shall be specified 

14 by the Secretary in the regulations promulgated 

15 pursuant to the Common Sense Nutrition Disclo16 sure Act of 2017.’’; and 

17 (B) by adding at the end the following: 

18 ‘‘(IV) CERTIFICATIONS.—Restaurants and 

19 similar retail food establishments shall not be re20 quired to provide certifications or similar signed 

21 statements relating to compliance with the re22 quirements of this clause.’’; 

23 (6) by amending subclause (xi) to read as fol24 lows: 

25 ‘‘(xi) DEFINITIONS.—In this clause: 


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1 ‘‘(I) MENU; MENU BOARD.—The term 

2 ‘menu’ or ‘menu board’ means the one listing of 

3 items which the restaurant or similar retail food 

4 establishment reasonably believes to be, and des5 ignates as, the primary listing from which cus6 tomers make a selection in placing an order. The 

7 ability to order from an advertisement, coupon, 

8 flyer, window display, packaging, social media, 

9 or other similar writing does not make the writ10 ing a menu or menu board. 

11 ‘‘(II) PRESET STANDARD BUILD.—The term 

12 ‘preset standard build’ means the finished 

13 version of a menu item most commonly ordered 

14 by consumers. 

15 ‘‘(III) STANDARD MENU ITEM.—The term 

16 ‘standard menu item’ means a food item of the 

17 type described in subclause (i) or (ii) of subpara18 graph (5)(A) with the same recipe prepared in 

19 substantially the same way with substantially 

20 the same food components that— 

21 ‘‘(aa) is routinely included on a menu 

22 or menu board or routinely offered as a self23 service food or food on display at 20 or 

24 more locations doing business under the 

25 same name; and 


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1 ‘‘(bb) is not a food referenced in sub2 clause (vii).’’; and 

3 (7) by adding at the end the following: 

4 ‘‘(xii) OPPORTUNITY TO CORRECT VIOLATIONS.— 

5 Any restaurant or similar retail food establishment 

6 that the Secretary determines is in violation of this 

7 clause shall have 90 days after receiving notification 

8 of the violation to correct the violation. The Secretary 

9 shall take no enforcement action, including the 

10 issuance of any public letter, for violations that are 

11 corrected within such 90-day period.’’. 

12 (b) NATIONAL UNIFORMITY.—Section 403A(b) of the 

13 Federal Food, Drug, and Cosmetic Act (21 U.S.C. 343–1(b)) 

14 is amended by striking ‘‘may exempt from subsection (a)’’ 

15 and inserting ‘‘may exempt from subsection (a) (other than 

16 subsection (a)(4))’’. 

17 SEC. 3. LIMITATION ON LIABILITY FOR DAMAGES ARISING 

18 FROM NONCOMPLIANCE WITH NUTRITION LA19 BELING REQUIREMENTS. 

20 Section 403(q)(5)(H) of the Federal Food, Drug, and 

21 Cosmetic Act (21 U.S.C. 343(q)(5)(H)), as amended by sec22 tion 2, is further amended by adding at the end the fol23 lowing: 

24 ‘‘(xiii) LIMITATION ON LIABILITY.—A restaurant 

25 or similar retail food establishment shall not be liable 


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1 in any civil action in Federal or State court (other 

2 than an action brought by the United States or a 

3 State) for any claims arising out of an alleged viola4 tion of— 

5 ‘‘(I) this clause; or 

6 ‘‘(II) any State law permitted under section 

7 403A(a)(4).’’. 


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Union Calendar No. 360 

115TH CONGRESS 

2D SESSION H. R. 772 

[Report No. 115–486] 

A BILL 

To amend the Federal Food, Drug, and Cosmetic 

to bring proceedings under section 403A. food establishments, and to amend the authority quirements for restaurants and similar retail Act to improve and clarify certain disclosure reJANUARY 8, 2018 

Reported with an amendment, committed to the Comand ordered to be printed mittee of the Whole House on the State of the Union, 


daltland on DSKBBV9HB2PROD with BILLS