IB 

Union Calendar No. 315 

114TH CONGRESS 

2D SESSION H. R. 2017 

[Report No. 114–413] 

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 

APRIL 23, 2015 

Mrs. MCMORRIS RODGERS (for herself and Ms. LORETTA SANCHEZ of California) introduced the following bill; which was referred to the Committee 

on Energy and Commerce 

FEBRUARY 2, 2016 

Additional sponsors: Mr. WOMACK, Mrs. ELLMERS of North Carolina, Mr. 

UPTON, Mr. JORDAN, Mr. GROTHMAN, Mr. CRAWFORD, Mrs. WAGNER, 

Mr. CRAMER, Mr. BISHOP of Utah, Mr. GRAVES of Missouri, Mr. 

MOOLENAAR, Mr. RIBBLE, Mr. GUTHRIE, Mr. MOONEY of West Virginia, 

Mr. HOLDING, Mrs. MIMI WALTERS of California, Mr. SANFORD, Mr. 

HINOJOSA, Mr. SCALISE, Mr. KIND, Mr. LANCE, Mr. SIRES, Mr. 

BARLETTA, Mr. NEWHOUSE, Mr. WHITFIELD, Mrs. BROOKS of Indiana, 

Mrs. BLACKBURN, Mr. GOSAR, Mr. COFFMAN, Mr. GUINTA, Mr. SMITH

of Washington, Mr. POSEY, Mr. JONES, Mr. HANNA, Mr. ROSS, Mr. 

MURPHY of Pennsylvania, Mr. LUETKEMEYER, Mr. BARTON, Mr. 

WESTERMAN, Mr. WENSTRUP, Mr. BARR, Mr. MULLIN, Mr. COLLINS of 

New York, Mr. COLLINS of Georgia, Mr. WALBERG, Mr. ROGERS of Kentucky, Mr. MILLER of Florida, Mr. LUCAS, Ms. STEFANIK, Mr. STIVERS, 

Mr. COOK, Mr. SHIMKUS, Mr. WALZ, Mr. MULVANEY, Mr. LATTA, Mr. 

CHABOT, Mr. BENISHEK, Mrs. HARTZLER, Mr. BLUM, Mr. HUELSKAMP, 

Mrs. WALORSKI, Mr. AMODEI, Mr. LAMALFA, Mr. ROUZER, Mr. 

BRIDENSTINE, Mr. JOYCE, Mr. ROKITA, Mr. SIMPSON, Mrs. LUMMIS, 

Mr. SHUSTER, Mr. WESTMORELAND, Mr. FITZPATRICK, Mr. HARRIS, Mr. 

BUCSHON, Mr. GIBBS, Mr. CUELLAR, Mr. HARPER, Mrs. MILLER of 

Michigan, Mr. DUNCAN of Tennessee, Mr. GRIFFITH, Mr. HUDSON, Mr. 

POMPEO, Mr. SMITH of New Jersey, Mr. ROTHFUS, Mr. VALADAO, Mr. 


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CA ́RDENAS, Mr. DUNCAN of South Carolina, Mr. POE of Texas, Mr. BILIRAKIS, Mr. PEARCE, Mr. KINZINGER of Illinois, Mr. MCKINLEY, Mr. 

ROONEY of Florida, Ms. JENKINS of Kansas, Mr. YOUNG of Iowa, Mr. 

ALLEN, Mr. BROOKS of Alabama, and Mr. DENT

FEBRUARY 2, 2016 

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 April 23, 2015] 

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 2015’’. 

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) REASONABLE BASIS DEFINED.—For 

16 the purposes of this subclause, with respect to a 

17 nutrient disclosure, the term ‘reasonable basis’ 

18 means that the nutrient disclosure is within ac19 ceptable allowances for variation in nutrient 

20 content. Such acceptable allowances shall include 

21 allowances for variation in serving size, inad22 vertent human error in formulation or prepara23 tion of menu items, and variations in ingredi24 ents.’’; 

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 2015, 

7 the Secretary shall issue proposed regulations to 

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

9 Any final regulations that are promulgated pur10 suant to the Common Sense Nutrition Disclosure 

11 Act of 2015, and any final regulations that were 

12 promulgated pursuant to this clause before the 

13 date of enactment of the Common Sense Nutri14 tion Disclosure Act of 2015, shall not take effect 

15 earlier than 2 years after the promulgation of 

16 final regulations pursuant to the Common Sense 

17 Nutrition Disclosure Act of 2015.’’; and 

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

19 ‘‘(IV) CERTIFICATIONS.—Restaurants and 

20 similar retail food establishments shall not be re21 quired to provide certifications or similar signed 

22 statements relating to compliance with the re23 quirements of this clause.’’; 

24 (6) by amending subclause (xi) to read as fol25 lows: 


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

2 ‘‘(I) MENU; MENU BOARD.—The term 

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

4 items which the restaurant or similar retail food 

5 establishment reasonably believes to be, and des6 ignates as, the primary listing from which cus7 tomers make a selection in placing an order. The 

8 ability to order from an advertisement, coupon, 

9 flyer, window display, packaging, social media, 

10 or other similar writing does not make the writ11 ing a menu or menu board. 

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

13 ‘preset standard build’ means the finished 

14 version of a menu item most commonly ordered 

15 by consumers. 

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

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

18 type described in subclause (i) or (ii) of subpara19 graph (5)(A) with the same recipe prepared in 

20 substantially the same way with substantially 

21 the same food components that— 

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

23 or menu board or routinely offered as a self24 service food or food on display at 20 or 


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1 more locations doing business under the 

2 same name; and 

3 ‘‘(bb) is not a food referenced in sub4 clause (vii).’’; and 

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

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

7 Any restaurant or similar retail food establishment 

8 that the Secretary determines is in violation of this 

9 clause shall have 90 days after receiving notification 

10 of the violation to correct the violation. The Secretary 

11 shall take no enforcement action, including the 

12 issuance of any public letter, for violations that are 

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

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

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

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

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

18 subsection (a)(4))’’. 

19 SEC. 3. LIMITATION ON LIABILITY FOR DAMAGES ARISING 

20 FROM NONCOMPLIANCE WITH NUTRITION LA21 BELING REQUIREMENTS. 

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

23 Cosmetic Act (21 U.S.C. 343(q)(5)(H)), as amended by sec24 tion 2, is further amended by adding at the end the fol25 lowing: 


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

2 or similar retail food establishment shall not be liable 

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

4 than an action brought by the United States or a 

5 State) for any claims arising out of an alleged viola6 tion of— 

7 ‘‘(I) this clause; or 

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

9 403A(a)(4).’’. 


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Union Calendar No. 315 

114TH CONGRESS 

2D SESSION H. R. 2017 

[Report No. 114–413] 

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 reFEBRUARY 2, 2016 

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


srobinson on DSK5SPTVN1PROD with BILLS