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FDA: Preemption and Menu Labeling

July 19, 2010

The critical issue of preemption is missing from FDA’s recent request for comments on new menu labeling regulations.  Strange, given how important preemption is to the restaurant chains.  (Pre-emption Of State And Local Menu Labeling Laws Good News For Franchise Restaurants)

Federal (and state) preemption of smokefree laws has been one of the tobacco industry’s top goals for decades.  But so far, the tobacco industry has failed to pass federal preemption.

Not so with menu labeling.  The menu labeling provisions (and preemption) are part of the health care reform legislation enacted in March.  In spite of the fact that more than 19 states or local jurisdictions have already passed menu labeling laws, Congress preempted state and local laws “of the type” required by federal law.  The new law does exempt chains of under 20 outlets and allows for “a warning concerning the safety” of a food or component of food.  But the rapidly growing grassroots movement for meaningful menu labeling may never recover.

Given that President Obama issued a memo last May opposing preemption in all federal rulemaking, it is especially odd that the FDA has not addressed this central issue up front.  As the President says in his memo to the heads of all departments and agencies, “Throughout our history, State and local governments have frequently protected health, safety, and the environment more aggressively than has the national Government.”  Hopefully, the FDA will consider the President’s comments as it decides exactly how much state and local authority to strip away.