March 27, 2020

FDA Helps the Food Supply Chain by Easing Labeling Requirements During the COVID-19 Pandemic

On March 26, 2020, the Food and Drug Administration (FDA) issued Guidance for Industry: Temporary Policy Regarding Nutrition Labeling of Certain Packaged Food During the COVID-19 Public Health Emergency to provide restaurants and food manufacturers with flexibility regarding nutrition labeling of foods packaged for restaurant or foodservice use to allow sale directly to consumers. FDA addresses three particular situations: labeling by restaurants; labeling by food manufacturers; and food production if retail packaging is unavailable.

Labeling by Restaurants

Much of the bulk packaged food, both perishable and non-perishable, sold through food service channels may lack nutrition information on the label that would normally be required for food sold directly to consumers in retail situations. To facilitate sale of this excess food inventory directly to consumers, FDA will not object to labeling that does not meet all regulatory requirements, such as containing a nutrition facts panel, provided that the label makes no nutrition claims and the label includes the following required information:

  • A statement of identity
  • An ingredient statement
  • The name and place of business of the food manufacturer, packer or distributor
  • Net quantity of contents
  • Allergen information required by the Food Allergen Labeling and Consumer Protection Act (FALCPA)

To ensure the required information is on the label, a restaurant potentially may reuse original labels, use labels provided by the manufacturer or create its own labels. Allowing restaurants to add labels/stickers with this information addresses the fact that most restaurants are not normally authorized to conduct packaging and labeling operations like a food manufacturer. But restaurants do comply with state, local, tribal and territorial food safety laws that are modeled after FDA’s Food Code, including specifications to ensure the food is safe and unadulterated, which FDA concluded are adequate to ensure the safety of the food to go back into distribution.

Labeling by Food Manufacturers

Food manufacturers and distributors may also have excess of inventory on hand that is labeled for foodservice, not retail. FDA will allow sale to consumers of these packaged foods without a Nutrition Facts Panel under the same requirements listed above.

Food Production if Retail Packaging Is Unavailable

FDA recognized that because many manufacturers practice “just in time” manufacturing, they may have sufficient ingredients on hand to produce additional product but not enough packaging materials to label the product for retail sale. Rather than stopping food production, FDA will not object to the further production of food labeled for use in restaurants, even though intended to be sold to consumers, until retail packaging is available. However, before the products can be sold to consumer, they will need to include the minimum labeling requirements listed above. Once retail packaging becomes available, the food manufacturer must begin using it if the foods are intended to be distributed for retail sale.

Summary: Eased but Not Eliminated

While FDA’s temporary policy provides restaurants and food manufactures with flexibility to sell food to consumers, it has limitations. FDA is not allowing foods packaged for restaurant or foodservice channels to be sold simply as packaged. Their labels must still have the key information identified above, which in many cases may require stickers or other solutions before the foods can be sold. FDA’s guidance also does not apply to foods prepared by restaurants and does not allow restaurants to produce food that will be packaged and labeled for retail sale. Finally, this temporary policy is in effect only for the duration of the COVID-19 public health emergency declared by Health and Human Services (HHS). FDA’s labeling policy should preempt local and state requirements, and in the limited situations where that is not clear, state and local authorities will likely follow the lead of FDA in allowing flexibility to make sure that food can reach consumers and is not wasted during this public health emergency.

For additional information, please consult the following resources:

As the number of cases around the world grows, Faegre Drinker’s Coronavirus Resource Center is available to help you understand and assess the legal, regulatory and commercial implications of COVID-19.

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