Common Sense Nutrition Disclosure Act of 2017

Bill: 115-hr-772
Sponsor: full_name: Rep. McMorris Rodgers, Cathy [R-WA-5]
Introduced: 2017-01-31
Policy area: Health
Subjects: Administrative law and regulatory procedures

Consumer affairs

Department of Health and Human Services

Food industry and services

Nutrition and diet

Retail and wholesale trades
Latest action: action_date: 2018-02-07
text: Received in the Senate.

Summaries:
action_date: 2017-01-31
action_desc: Introduced in House
text: <p><b>Common Sense Nutrition Disclosure Act of 2017</b></p> <p>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.</p> <p>Establishments with self-serve food may comply with the requirements for restaurants or place signs with nutritional information adjacent to each food item.</p> <p>An establishment's nutrient content disclosures may vary from actual nutrient content if the disclosures comply with current standards for reasonable basis.</p> <p>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).</p> <p>Regulations pursuant to this bill or the clause amended by this bill may not take effect earlier than two years after final regulations are promulgated.</p> <p>The FDA may not exempt states from nutrition labeling requirements.</p>

action_date: 2018-01-08
action_desc: Reported to House with amendment(s)
text: <p><b>Common Sense Nutrition Disclosure Act of 2017</b></p> <p>(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.</p> <p>Establishments with self-serve food may comply with the requirements for restaurants or place signs with nutritional information adjacent to each food item.</p> <p>An establishment's nutrient content disclosures may vary from actual nutrient content if the disclosures comply with current standards for reasonable basis.</p> <p>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).</p> <p>Regulations pursuant to this bill or the clause amended by this bill may not take effect until&nbsp;the compliance&nbsp;date specified in the regulations promulgated pursuant to this bill.</p> <p>The FDA may not exempt states from nutrition labeling requirements.</p> <p>(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.</p>

action_date: 2018-02-06
action_desc: Passed House amended
text: <p>(This measure has not been amended since it was reported to the House on January 8, 2018. The summary of that version is repeated here.)</p> <p><b>Common Sense Nutrition Disclosure Act of 2017</b></p> <p>(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.</p> <p>Establishments with self-serve food may comply with the requirements for restaurants or place signs with nutritional information adjacent to each food item.</p> <p>An establishment's nutrient content disclosures may vary from actual nutrient content if the disclosures comply with current standards for reasonable basis.</p> <p>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).</p> <p>Regulations pursuant to this bill or the clause amended by this bill may not take effect until&nbsp;the compliance&nbsp;date specified in the regulations promulgated pursuant to this bill.</p> <p>The FDA may not exempt states from nutrition labeling requirements.</p> <p>(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.</p>

tv_txt: I 115th CONGRESS 1st Session H. R. 772 IN THE HOUSE OF REPRESENTATIVES January 31, 2017 Mrs. McMorris Rodgers (for herself, Mr. Allen , Mr. Barletta , Mr. Blum , Mr. Bucshon , Mr. Cárdenas , Mr. Collins of New York , Mr. Collins of Georgia , Mr. Crawford , Mr. Cuellar , Mr. Gosar , Mr. Harris , Mrs. Hartzler , Mr. Hudson , Ms. Jenkins of Kansas , Mr. Jones , Mr. Kind , Mr. Latta , Mr. Moolenaar , Mr. Mooney of West Virginia , Mr. Mullin , Mr. Newhouse , Mr. Pearce , Mr. Poe of Texas , Mr. Rothfus , Ms. Sinema , Mr. Smith of New Jersey , Ms. Stefanik , Mr. Valadao , Mrs. Wagner , Mr. Walberg , Mrs. Walorski , Mrs. Mimi Walters of California , Mr. Walz , Mr. Westerman , and Mr. Young of Iowa ) introduced the following bill; which was referred to the Committee on Energy and Commerce 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 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. 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). .

tv_txt: IB Union Calendar No. 360 115th CONGRESS 2d Session H. R. 772 [Report No. 115–486] IN THE HOUSE OF REPRESENTATIVES January 31, 2017 Mrs. McMorris Rodgers (for herself, Mr. Allen , Mr. Barletta , Mr. Blum , Mr. Bucshon , Mr. Cárdenas , Mr. Collins of New York , Mr. Collins of Georgia , Mr. Crawford , Mr. Cuellar , Mr. Gosar , Mr. Harris , Mrs. Hartzler , Mr. Hudson , Ms. Jenkins of Kansas , Mr. Jones , Mr. Kind , Mr. Latta , Mr. Moolenaar , Mr. Mooney of West Virginia , Mr. Mullin , Mr. Newhouse , Mr. Pearce , Mr. Poe of Texas , Mr. Rothfus , Ms. Sinema , Mr. Smith of New Jersey , Ms. Stefanik , Mr. Valadao , Mrs. Wagner , Mr. Walberg , Mrs. Walorski , Mrs. Mimi Walters of California , Mr. Walz , Mr. Westerman , and Mr. Young of Iowa ) introduced the following bill; which was referred to the Committee on Energy and Commerce January 8, 2018 Additional sponsors: Mrs. Brooks of Indiana , Mr. Lance , Mr. Aguilar , Mr. Holding , Mr. Rokita , Mr. Thomas J. Rooney of Florida , Mr. Carter of Georgia , Mr. Lucas , Mr. Barr , Mr. Ferguson , Mr. Roe of Tennessee , Mr. Carter of Texas , Mr. Turner , Ms. Tenney , Mr. Buck , Mr. Gallagher , Mr. Posey , Mr. Womack , Mr. Shuster , Mr. Luetkemeyer , Mr. Gibbs , Mr. King of Iowa , Mr. Russell , Mr. Griffith , Mr. Mitchell , Mr. Lewis of Minnesota , Mr. Rutherford , Mr. Bilirakis , Mr. Kinzinger , Mr. Fleischmann , Mr. Budd , Mr. Lamborn , Mr. Higgins of Louisiana , Ms. Herrera Beutler , Mr. Smith of Missouri , Mr. Grothman , Mr. Cramer , Mr. Joyce of Ohio , Mr. Dunn , Mrs. Love , Mr. Messer , Mr. Murphy of Pennsylvania , Mr. Sanford , Mr. Harper , Mr. Rouzer , Mr. Shimkus , Mr. Chabot , Mr. Walker , Mr. Fitzpatrick , Mr. Ratcliffe , and Mr. Issa 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 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 January 31, 2017 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 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. 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. 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. ; 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). .

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

tv_txt: IB 115th CONGRESS 2d Session H. R. 772 IN THE HOUSE OF REPRESENTATIVES 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 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 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. 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. 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. ; 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). .

Passed the House of Representatives February 6, 2018. Karen L. Haas, Clerk.

tv_txt: 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 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 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. 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. 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. ; 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). .

Passed the House of Representatives February 6, 2018. Karen L. Haas, Clerk