[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 772 Reported in House (RH)]
<DOC>
Union Calendar No. 360
115th CONGRESS
2d Session
H. R. 772
[Report No. 115-486]
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
January 31, 2017
Mrs. McMorris Rodgers (for herself, Mr. Allen, Mr. Barletta, Mr. Blum,
Mr. Bucshon, Mr. Cardenas, 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.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Common Sense Nutrition 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 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))''.
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 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).''.
Union Calendar No. 360
115th CONGRESS
2d Session
H. R. 772
[Report No. 115-486]
_______________________________________________________________________
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.
_______________________________________________________________________
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