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 sec-
tion 403A. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
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SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Common Sense Nutri-
tion Disclosure Act of 2017’’. 
SEC. 2. AMENDING CERTAIN DISCLOSURE REQUIREMENTS 
FOR RESTAURANTS AND SIMILAR RETAIL 
FOOD ESTABLISHMENTS. 
(a) IN GENERAL.—Section 403(q)(5)(H) of the Fed-
eral Food, Drug, and Cosmetic Act (21 U.S.C. 
343(q)(5)(H)) is amended— 
(1) in subclause (ii)— 
(A) in item (I)(aa), by striking ‘‘the num-
ber of calories contained in the standard menu 
item, as usually prepared and offered for sale’’ 
and inserting ‘‘the number of calories contained 
in the whole standard menu item, or the num-
ber of servings (as reasonably determined by 
the restaurant or similar retail food establish-
ment) and number of calories per serving, or 
the number of calories per the common unit di-
vision of the standard menu item, such as for 
a multiserving item that is typically divided be-
fore presentation to the consumer’’; 
(B) in item (II)(aa), by striking ‘‘the num-
ber of calories contained in the standard menu 
item, as usually prepared and offered for sale’’ 
and inserting ‘‘the number of calories contained 
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in the whole standard menu item, or the num-
ber of servings (as reasonably determined by 
the restaurant or similar retail food establish-
ment) and number of calories per serving, or 
the number of calories per the common unit di-
vision of the standard menu item, such as for 
a multiserving item that is typically divided be-
fore presentation to the consumer’’; and 
(C) by adding at the end the following 
flush text: 
‘‘In the case of restaurants or similar retail food es-
tablishments 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 dis-
closed 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 in-
stead of on-premises writings.’’; 
(2) in subclause (iii)— 
(A) by inserting ‘‘either’’ after ‘‘a res-
taurant or similar retail food establishment 
shall’’; and 
(B) by inserting ‘‘or comply with subclause 
(ii)’’ after ‘‘per serving’’; 
(3) in subclause (iv)— 
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(A) by striking ‘‘For the purposes of this 
clause’’ and inserting the following: 
‘‘(I) IN GENERAL.—For the purposes of 
this clause’’; 
(B) by striking ‘‘and other reasonable 
means’’ and inserting ‘‘or other reasonable 
means’’; and 
(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 disclo-
sures vary from actual nutrient content, includ-
ing but not limited to variations in serving size, 
inadvertent human error in formulation or 
preparation of menu items, variations in ingre-
dients, or other reasonable variations.’’; 
(4) by amending subclause (v) to read as fol-
lows: 
‘‘(v) MENU
VARIABILITY
AND
COMBINATION 
MEALS.—The Secretary shall establish by regulation 
standards for determining and disclosing the nutri-
ent content for standard menu items that come in 
different flavors, varieties, or combinations, but 
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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 res-
taurant or similar retail food establishment to 
choose whether to determine and disclose such con-
tent 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 establish-
ment to determine and disclose such content by 
using any of the following methods: ranges, aver-
ages, 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.’’ and inserting ‘‘Not 
later than 1 year after the date of enactment of 
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the Common Sense Nutrition Disclosure Act of 
2017, the Secretary shall issue proposed regula-
tions 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 regu-
lations promulgated pursuant to the Common 
Sense Nutrition Disclosure Act of 2017.’’; and 
(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 fol-
lows: 
‘‘(xi) DEFINITIONS.—In this clause: 
‘‘(I) MENU; 
MENU
BOARD.—The term 
‘menu’ or ‘menu board’ means the one listing of 
items which the restaurant or similar retail food 
establishment reasonably believes to be, and 
designates as, the primary listing from which 
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customers make a selection in placing an order. 
The ability to order from an advertisement, 
coupon, flyer, window display, packaging, social 
media, or other similar writing does not make 
the writing a menu or menu board. 
‘‘(II) PRESET
STANDARD
BUILD.—The 
term ‘preset standard build’ means the finished 
version of a menu item most commonly ordered 
by consumers. 
‘‘(III) STANDARD MENU ITEM.—The term 
‘standard menu item’ means a food item of the 
type described in subclause (i) or (ii) of sub-
paragraph (5)(A) with the same recipe prepared 
in substantially the same way with substantially 
the same food components that— 
‘‘(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 sub-
clause (vii).’’; and 
(7) by adding at the end the following: 
‘‘(xii) 
OPPORTUNITY
TO
CORRECT
VIOLA-
TIONS.—Any restaurant or similar retail food estab-
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lishment that the Secretary determines is in viola-
tion of this clause shall have 90 days after receiving 
notification of the violation to correct the violation. 
The Secretary shall take no enforcement action, in-
cluding the issuance of any public letter, for viola-
tions 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)) is amended by striking ‘‘may exempt from sub-
section (a)’’ and inserting ‘‘may exempt from subsection 
(a) (other than subsection (a)(4))’’. 
SEC. 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)), as amended by 
section 2, is further amended by adding at the end the 
following: 
‘‘(xiii) LIMITATION
ON
LIABILITY.—A res-
taurant 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 
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‘‘(II) any State law permitted under sec-
tion 403A(a)(4).’’. 
Passed the House of Representatives February 6, 
2018. 
Attest: 
KAREN L. HAAS, 
Clerk. 
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