II 

115TH CONGRESS 

1ST SESSION S. 261 

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 SENATE OF THE UNITED STATES 

FEBRUARY 1, 2017 

Mr. BLUNT (for himself, Mr. KING, Mrs. MCCASKILL, Mr. MCCAIN, Mr. 

BOOZMAN, Mr. SCOTT, and Ms. HEITKAMP) introduced the following bill; 

which was read twice and referred to the Committee on Health, Education, Labor, and Pensions 

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. 

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’’. 


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1 SEC. 2. AMENDING CERTAIN DISCLOSURE REQUIREMENTS 

2 FOR RESTAURANTS AND SIMILAR RETAIL 

3 FOOD ESTABLISHMENTS. 

4 (a) IN GENERAL.—Section 403(q)(5)(H) of the Fed5 eral Food, Drug, and Cosmetic Act (21 U.S.C. 

6 343(q)(5)(H)) is amended— 

7 (1) in subclause (ii)— 

8 (A) in item (I)(aa), by striking ‘‘the num9 ber of calories contained in the standard menu 

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

11 and inserting ‘‘the number of calories contained 

12 in the whole standard menu item, or the num13 ber of servings (as reasonably determined by 

14 the restaurant or similar retail food establish15 ment) and number of calories per serving, or 

16 the number of calories per the common unit di17 vision of the standard menu item, such as for 

18 a multiserving item that is typically divided be19 fore presentation to the consumer’’; 

20 (B) in item (II)(aa), by striking ‘‘the num21 ber of calories contained in the standard menu 

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

23 and inserting ‘‘the number of calories contained 

24 in the whole standard menu item, or the num25 ber of servings (as reasonably determined by 

26 the restaurant or similar retail food establishVerDate Sep 11 2014 01:04 Feb 04, 2017 Jkt 069200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S261.IS S261

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1 ment) and number of calories per serving, or 

2 the number of calories per the common unit di3 vision of the standard menu item, such as for 

4 a multiserving item that is typically divided be5 fore presentation to the consumer’’; and 

6 (C) by adding at the end the following 

7 flush text: 

8 ‘‘In the case of restaurants or similar retail food es9 tablishments where the majority of orders are placed 

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

11 order is placed, the information required to be dis12 closed under items (I) through (IV) may be provided 

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

14 on the Internet) as the sole method of disclosure in15 stead of on-premises writings.’’; 

16 (2) in subclause (iii)— 

17 (A) by inserting ‘‘either’’ after ‘‘a res18 taurant or similar retail food establishment 

19 shall’’; and 

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

21 (ii)’’ after ‘‘per serving’’; 

22 (3) in subclause (iv)— 

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

24 clause’’ and inserting the following: 


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

2 this clause’’; 

3 (B) by striking ‘‘and other reasonable 

4 means’’ and inserting ‘‘or other reasonable 

5 means’’; and 

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

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

8 restaurant or similar food establishment uses 

9 such means as the basis for its nutrient content 

10 disclosures, such disclosures shall be treated as 

11 having a reasonable basis even if such disclo12 sures vary from actual nutrient content, includ13 ing variations in serving size, inadvertent 

14 human error in formulation or preparation of 

15 menu items, variations in ingredients, or other 

16 reasonable variations.’’; 

17 (4) by amending subclause (v) to read as fol18 lows: 

19 ‘‘(v) MENU VARIABILITY AND COMBINATION

20 MEALS.—The Secretary shall establish by regulation 

21 standards for determining and disclosing the nutri22 ent content for standard menu items that come in 

23 different flavors, varieties, or combinations, but 

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

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


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1 combination meals. Such standards shall allow a res2 taurant or similar retail food establishment to 

3 choose whether to determine and disclose such con4 tent for the whole standard menu item, for a serving 

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

6 common unit division thereof accompanied by the 

7 number of servings or common unit divisions in the 

8 whole standard menu item. Such standards shall 

9 allow a restaurant or similar retail food establish10 ment to determine and disclose such content by 

11 using any of the following methods: ranges, aver12 ages, individual labeling of flavors or components, or 

13 labeling of one preset standard build. In addition to 

14 such methods, the Secretary may allow the use of 

15 other methods, to be determined by the Secretary, 

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

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

18 (5) in subclause (x)— 

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

20 after the date of enactment of this clause, the 

21 Secretary shall promulgate proposed regulations 

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

23 later than 1 year after the date of enactment of 

24 the Common Sense Nutrition Disclosure Act of 

25 2017, the Secretary shall issue proposed regulaVerDate Sep 11 2014 01:04 Feb 04, 2017 Jkt 069200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S261.IS S261

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1 tions to carry out this clause, as amended by 

2 such Act. Any final regulations that are pro3 mulgated pursuant to the Common Sense Nu4 trition Disclosure Act of 2017, and any final 

5 regulations that were promulgated pursuant to 

6 this clause before the date of enactment of the 

7 Common Sense Nutrition Disclosure Act of 

8 2017, shall not take effect earlier than 2 years 

9 after the promulgation of final regulations pur10 suant to the Common Sense Nutrition Disclo11 sure 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 01:04 Feb 04, 2017 Jkt 069200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S261.IS S261

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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).’’. 

Æ 


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