II 115th CONGRESS 1st Session S. 261 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. 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) ) is amended— (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 and inserting 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 and inserting 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 ; and (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 after a restaurant or similar retail food establishment shall ; and (B) by inserting or comply with subclause (ii) after per serving ; (3) in subclause (iv)— (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 disclosures vary from actual nutrient content, including 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. and inserting 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. Any final regulations that are promulgated pursuant to the Common Sense Nutrition Disclosure Act of 2017 , and any final regulations that were promulgated pursuant to this clause before the date of enactment of the Common Sense Nutrition Disclosure Act of 2017 , shall not take effect earlier than 2 years after the promulgation of final regulations 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 follows: (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 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 subparagraph (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 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) ) is amended by striking may exempt from subsection (a) and inserting 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) ), as amended by section 2, is further amended by adding at the end the following: (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). .