Common Sense Nutrition Disclosure Act of 2017

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. Short title This Act may be cited as the Common Sense Nutrition Disclosure Act of 2017 2. Amending certain disclosure requirements for restaurants and similar retail food establishments (a) In general Section 403(q)(5)(H) of the Federal Food, Drug, and Cosmetic Act ( 21 U.S.C. 343(q)(5)(H) (1) in subclause (ii)— (A) in item (I)(aa), by striking the number of calories contained in the standard menu item, as usually prepared and offered for sale the number of calories contained in the whole standard menu item, or the number of servings (as reasonably determined by the restaurant or similar retail food establishment) and number of calories per serving, or the number of calories per the common unit division of the standard menu item, such as for a multiserving item that is typically divided before presentation to the consumer (B) in item (II)(aa), by striking the number of calories contained in the standard menu item, as usually prepared and offered for sale the number of calories contained in the whole standard menu item, or the number of servings (as reasonably determined by the restaurant or similar retail food establishment) and number of calories per serving, or the number of calories per the common unit division of the standard menu item, such as for a multiserving item that is typically divided before presentation to the consumer (C) by adding at the end the following flush text: In the case of restaurants or similar retail food establishments where the majority of orders are placed by customers who are off-premises at the time such order is placed, the information required to be disclosed under items (I) through (IV) may be provided by a remote-access menu (such as a menu available on the internet) as the sole method of disclosure instead of on-premises writings. ; (2) in subclause (iii)— (A) by inserting either a restaurant or similar retail food establishment shall (B) by inserting or comply with subclause (ii) per serving (3) in subclause (iv)— (A) by striking For the purposes of this clause (I) In general For the purposes of this clause ; (B) by striking and other reasonable means or other reasonable means (C) by adding at the end the following: (II) Permissible variation If the restaurant or similar food establishment uses such means as the basis for its nutrient content disclosures, such disclosures shall be treated as having a reasonable basis even if such disclosures vary from actual nutrient content, including but not limited to variations in serving size, inadvertent human error in formulation or preparation of menu items, variations in ingredients, or other reasonable variations. ; (4) by amending subclause (v) to read as follows: (v) Menu variability and combination meals The Secretary shall establish by regulation standards for determining and disclosing the nutrient content for standard menu items that come in different flavors, varieties, or combinations, but which are listed as a single menu item, such as soft drinks, ice cream, pizza, doughnuts, or children's combination meals. Such standards shall allow a restaurant or similar retail food establishment to choose whether to determine and disclose such content for the whole standard menu item, for a serving or common unit division thereof, or for a serving or common unit division thereof accompanied by the number of servings or common unit divisions in the whole standard menu item. Such standards shall allow a restaurant or similar retail food establishment to determine and disclose such content by using any of the following methods: ranges, averages, individual labeling of flavors or components, or labeling of one preset standard build. In addition to such methods, the Secretary may allow the use of other methods, to be determined by the Secretary, for which there is a reasonable basis (as such term is defined in subclause (iv)(II)). ; (5) in subclause (x)— (A) by striking Not later than 1 year after the date of enactment of this clause, the Secretary shall promulgate proposed regulations to carry out this clause. Not later than 1 year after the date of enactment of the Common Sense Nutrition Disclosure Act of 2017, the Secretary shall issue proposed regulations to carry out this clause, as amended by such Act. Final regulations to carry out this clause, including any regulations promulgated before the date of enactment of the Common Sense Nutrition Disclosure Act of 2017, shall not take effect until such compliance date as shall be specified by the Secretary in the regulations promulgated pursuant to the Common Sense Nutrition Disclosure Act of 2017. (B) by adding at the end the following: (IV) Certifications Restaurants and similar retail food establishments shall not be required to provide certifications or similar signed statements relating to compliance with the requirements of this clause. ; (6) by amending subclause (xi) to read as follows: (xi) Definitions In this clause: (I) Menu; menu board The term menu menu board (II) Preset standard build The term preset standard build (III) Standard menu item The term standard menu item (aa) is routinely included on a menu or menu board or routinely offered as a self-service food or food on display at 20 or more locations doing business under the same name; and (bb) is not a food referenced in subclause (vii). ; and (7) by adding at the end the following: (xii) Opportunity to correct violations Any restaurant or similar retail food establishment that the Secretary determines is in violation of this clause shall have 90 days after receiving notification of the violation to correct the violation. The Secretary shall take no enforcement action, including the issuance of any public letter, for violations that are corrected within such 90-day period. . (b) National uniformity Section 403A(b) of the Federal Food, Drug, and Cosmetic Act ( 21 U.S.C. 343–1(b) may exempt from subsection (a) may exempt from subsection (a) (other than subsection (a)(4)) 3. Limitation on liability for damages arising from noncompliance with nutrition labeling requirements Section 403(q)(5)(H) of the Federal Food, Drug, and Cosmetic Act ( 21 U.S.C. 343(q)(5)(H) (xiii) Limitation on liability A restaurant or similar retail food establishment shall not be liable in any civil action in Federal or State court (other than an action brought by the United States or a State) for any claims arising out of an alleged violation of— (I) this clause; or (II) any State law permitted under section 403A(a)(4). . 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

Summary: Common Sense Nutrition Disclosure Act of 2017 (Sec. 2) This bill amends the Federal Food, Drug, and Cosmetic Act to revise the nutritional information that restaurants and retail food establishments must disclose. The nutrient content disclosure statement on the menu or menu board must include: (1) the number of calories contained in the whole menu item; (2) the number of servings and number of calories per serving; or (3) the number of calories per common unit of the item, such as for a multi-serving item that is typically divided before presentation to the consumer. Nutritional information may be provided solely by a remote-access menu (e.g., an Internet menu) for food establishments where the majority of orders are placed by customers who are off-premises. Establishments with self-serve food may comply with the requirements for restaurants or place signs with nutritional information adjacent to each food item. An establishment's nutrient content disclosures may vary from actual nutrient content if the disclosures comply with current standards for reasonable basis. Establishments with standard menu items that come in different flavors, varieties, or combinations, that are listed as a single menu item may determine and disclose nutritional information using specified methods or methods allowed by the Food and Drug Administration (FDA). Regulations pursuant to this bill or the clause amended by this bill may not take effect until the compliance date specified in the regulations promulgated pursuant to this bill. The FDA may not exempt states from nutrition labeling requirements. (Sec. 3) Establishments are not liable in any state or federal civil action for claims arising out of an alleged violation of federal or state nutrition labeling, unless the action is brought by a state or the United States.