FDA Issues Notice for Voluntary Registration for Non-Covered Retail Food Establishments and Vending Machine Operators Electing to Opt-In to Coverage of the Nutritional Disclosure Requirements of the Patient Protection and Affordable Care Act of 2010

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As we previously reported, the Patient Protection and Affordable Care Act of 2010 (“PPACA”) contains a section requiring nutritional disclosure requirements for certain retail food establishments and vending machine operators. Pursuant to section 4205 of the PPACA, restaurants and similar retail food establishments with 20 or more locations doing business under the same name and offering for sale substantially the same menu items (“chain restaurants”) and for vending machine owners operating 20 or more vending machines (“chain vending machine operators”) are required to disclosure certain nutritional information on the foods and beverages that they sell.

On July 23, 2010, the U.S. Food and Drug Administration (FDA) issued a Federal Register Notice providing registration guidance to retail food establishments and vending machine operators who are not covered by the nutritional disclosure requirements of section 4205 but would like to elect to become subject to the requirements by registering biannually with the FDA. Retail food establishments that are not covered by section 4205 may still be subject to State and local nutritional labeling laws that are not “identical to” the Federal requirements. By voluntarily registering under section 4205, these retail food establishments will no longer be subject to State or local nutritional labeling requirements unless those requirements are identical to the Federal requirements. It is different for vending machine operators. Vending machine operators cannot be subject to State or local nutritional labeling requirements that are not identical to the Federal requirements, but may still elect to be subject to the requirements in section 4205 by registering with the FDA.

The FDA will begin accepting registrations on July 21, 2010, on a continuous basis. The registration must be renewed every other year or it will automatically expire. Restaurants, similar retail food establishments, and vending machine owners must use the FDA form at http://www.fda.gov/menulabeling  to register. For registration of restaurants or similar retail food establishments, the following information must be provided to the FDA:

• The name, address, phone number, e-mail address, and contact information for the authorized official;
• The name, address, and e-mail address of each restaurant or similar retail food establishment being registered, as well as the name and contact information for an official onsite, such as the owner or manager for each specific restaurant or retail food establishment;
• All trade names the restaurant or similar retail food establishment uses;
• Preferred mailing address for correspondence; and
• Certification that the information is true and accurate, submitted by someone authorized to do so, and that each registered facility will be subject to the requirements of section 4205.

For the registration of vending machine operators, the following information must be provided to the FDA:

• The name, address, phone number, e-mail address, and contact information for the vending machine operator;
• The address of each vending machine owned or operated by the vending machine operator, and the name and contact information of the location in which each vending machine is located;
• Preferred mailing address for correspondence; and
• Certification that the information is true and accurate, submitted by someone authorized to do so, and that each registered facility will be subject to the requirements of section 4205.

The FDA prefers that all required registration information be sent via e-mail on the FDA form to http://menulawregistration@fda.hhs.gov.

For more information on the benefits of voluntary registration or assistance with other regulatory compliance issues for your restaurant, retail food establishment, or vending machine operations, please contact us at 305-350-5690 or contact@fidjlaw.com.