II 

115TH CONGRESS 

2D SESSION H. R. 772 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 7, 2018 

Received 

AN ACT 

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. 

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


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Common Sense Nutri3 tion Disclosure Act of 2017’’. 

4 SEC. 2. AMENDING CERTAIN DISCLOSURE REQUIREMENTS 

5 FOR RESTAURANTS AND SIMILAR RETAIL 

6 FOOD ESTABLISHMENTS. 

7 (a) IN GENERAL.—Section 403(q)(5)(H) of the Fed8 eral Food, Drug, and Cosmetic Act (21 U.S.C. 

9 343(q)(5)(H)) is amended— 

10 (1) in subclause (ii)— 

11 (A) in item (I)(aa), by striking ‘‘the num12 ber of calories contained in the standard menu 

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

14 and inserting ‘‘the number of calories contained 

15 in the whole standard menu item, or the num16 ber of servings (as reasonably determined by 

17 the restaurant or similar retail food establish18 ment) and number of calories per serving, or 

19 the number of calories per the common unit di20 vision of the standard menu item, such as for 

21 a multiserving item that is typically divided be22 fore presentation to the consumer’’; 

23 (B) in item (II)(aa), by striking ‘‘the num24 ber of calories contained in the standard menu 

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

26 and inserting ‘‘the number of calories contained 


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1 in the whole standard menu item, or the num2 ber of servings (as reasonably determined by 

3 the restaurant or similar retail food establish4 ment) and number of calories per serving, or 

5 the number of calories per the common unit di6 vision of the standard menu item, such as for 

7 a multiserving item that is typically divided be8 fore presentation to the consumer’’; and 

9 (C) by adding at the end the following 

10 flush text: 

11 ‘‘In the case of restaurants or similar retail food es12 tablishments where the majority of orders are placed 

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

14 order is placed, the information required to be dis15 closed under items (I) through (IV) may be provided 

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

17 on the internet) as the sole method of disclosure in18 stead of on-premises writings.’’; 

19 (2) in subclause (iii)— 

20 (A) by inserting ‘‘either’’ after ‘‘a res21 taurant or similar retail food establishment 

22 shall’’; and 

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

24 (ii)’’ after ‘‘per serving’’; 

25 (3) in subclause (iv)— 


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

2 clause’’ and inserting the following: 

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

4 this clause’’; 

5 (B) by striking ‘‘and other reasonable 

6 means’’ and inserting ‘‘or other reasonable 

7 means’’; and 

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

9 ‘‘(II) PERMISSIBLE VARIATION.—If the 

10 restaurant or similar food establishment uses 

11 such means as the basis for its nutrient content 

12 disclosures, such disclosures shall be treated as 

13 having a reasonable basis even if such disclo14 sures vary from actual nutrient content, includ15 ing but not limited to variations in serving size, 

16 inadvertent human error in formulation or 

17 preparation of menu items, variations in ingre18 dients, or other reasonable variations.’’; 

19 (4) by amending subclause (v) to read as fol20 lows: 

21 ‘‘(v) MENU VARIABILITY AND COMBINATION

22 MEALS.—The Secretary shall establish by regulation 

23 standards for determining and disclosing the nutri24 ent content for standard menu items that come in 

25 different flavors, varieties, or combinations, but 


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1 which are listed as a single menu item, such as soft 

2 drinks, ice cream, pizza, doughnuts, or children’s 

3 combination meals. Such standards shall allow a res4 taurant or similar retail food establishment to 

5 choose whether to determine and disclose such con6 tent for the whole standard menu item, for a serving 

7 or common unit division thereof, or for a serving or 

8 common unit division thereof accompanied by the 

9 number of servings or common unit divisions in the 

10 whole standard menu item. Such standards shall 

11 allow a restaurant or similar retail food establish12 ment to determine and disclose such content by 

13 using any of the following methods: ranges, aver14 ages, individual labeling of flavors or components, or 

15 labeling of one preset standard build. In addition to 

16 such methods, the Secretary may allow the use of 

17 other methods, to be determined by the Secretary, 

18 for which there is a reasonable basis (as such term 

19 is defined in subclause (iv)(II)).’’; 

20 (5) in subclause (x)— 

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

22 after the date of enactment of this clause, the 

23 Secretary shall promulgate proposed regulations 

24 to carry out this clause.’’ and inserting ‘‘Not 

25 later than 1 year after the date of enactment of 


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1 the Common Sense Nutrition Disclosure Act of 

2 2017, the Secretary shall issue proposed regula3 tions to carry out this clause, as amended by 

4 such Act. Final regulations to carry out this 

5 clause, including any regulations promulgated 

6 before the date of enactment of the Common 

7 Sense Nutrition Disclosure Act of 2017, shall 

8 not take effect until such compliance date as 

9 shall be specified by the Secretary in the regu10 lations promulgated pursuant to the Common 

11 Sense Nutrition Disclosure Act of 2017.’’; and 

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

13 ‘‘(IV) CERTIFICATIONS.—Restaurants and 

14 similar retail food establishments shall not be 

15 required to provide certifications or similar 

16 signed statements relating to compliance with 

17 the requirements of this clause.’’; 

18 (6) by amending subclause (xi) to read as fol19 lows: 

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

21 ‘‘(I) MENU; MENU BOARD.—The term 

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

23 items which the restaurant or similar retail food 

24 establishment reasonably believes to be, and 

25 designates as, the primary listing from which 


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1 customers make a selection in placing an order. 

2 The ability to order from an advertisement, 

3 coupon, flyer, window display, packaging, social 

4 media, or other similar writing does not make 

5 the writing a menu or menu board. 

6 ‘‘(II) PRESET STANDARD BUILD.—The 

7 term ‘preset standard build’ means the finished 

8 version of a menu item most commonly ordered 

9 by consumers. 

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

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

12 type described in subclause (i) or (ii) of sub13 paragraph (5)(A) with the same recipe prepared 

14 in substantially the same way with substantially 

15 the same food components that— 

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

17 or menu board or routinely offered as a 

18 self-service food or food on display at 20 or 

19 more locations doing business under the 

20 same name; and 

21 ‘‘(bb) is not a food referenced in sub22 clause (vii).’’; and 

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

24 ‘‘(xii) OPPORTUNITY TO CORRECT VIOLA25 TIONS.—Any restaurant or similar retail food estabVerDate Sep 11 2014 23:27 Mar 23, 2018 Jkt 079200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H772.RDS H772

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1 lishment that the Secretary determines is in viola2 tion of this clause shall have 90 days after receiving 

3 notification of the violation to correct the violation. 

4 The Secretary shall take no enforcement action, in5 cluding the issuance of any public letter, for viola6 tions that are corrected within such 90-day period.’’. 

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

8 Federal Food, Drug, and Cosmetic Act (21 U.S.C. 343– 

9 1(b)) is amended by striking ‘‘may exempt from sub10 section (a)’’ and inserting ‘‘may exempt from subsection 

11 (a) (other than subsection (a)(4))’’. 

12 SEC. 3. LIMITATION ON LIABILITY FOR DAMAGES ARISING 

13 FROM NONCOMPLIANCE WITH NUTRITION 

14 LABELING REQUIREMENTS. 

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

16 Cosmetic Act (21 U.S.C. 343(q)(5)(H)), as amended by 

17 section 2, is further amended by adding at the end the 

18 following: 

19 ‘‘(xiii) LIMITATION ON LIABILITY.—A res20 taurant or similar retail food establishment shall not 

21 be liable in any civil action in Federal or State court 

22 (other than an action brought by the United States 

23 or a State) for any claims arising out of an alleged 

24 violation of— 

25 ‘‘(I) this clause; or 


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1 ‘‘(II) any State law permitted under sec2 tion 403A(a)(4).’’. 

Passed the House of Representatives February 6, 

2018. 

Attest: KAREN L. HAAS, 

Clerk. 


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