The U.S. Food and Drug Administration (FDA) announced a new policy to provide flexibility for restaurants and food manufacturers that have products on hand that are not labeled for retail sale (i.e. labeled for foodservice). To facilitate food distribution during the COVID019 pandemic, FDA released a guidance document, Guidance for Industry: Temporary Policy Regarding Nutrition Labeling of Certain Packaged Food During the COVID-19 Public Health Emergency, which allows restaurants and food manufactures to sell food products without nutrition labeling under certain circumstances. FSIS provided similar flexibility for FSIS regulated products last week.

Restaurants that sell packaged food to consumers directly that lack a Nutrition Facts panel, provided that the food does not contain nutrition claims and includes all other required information, including:

  • A statement of identity;
  • An ingredient statement;
  • Name and place of business of the responsible firm;
  • Net contents; and
  • Allergen information.

Food manufacturers that have inventory on hand labeled for food service can sell products without a Nutrition Facts label, so long as the food label does not contain nutrition claims and includes all other required information, including:

  • A statement of identity;
  • An ingredient statement;
  • Name and place of business of the responsible firm;
  • Net contents; and
  • Allergen information.

If retail packaging for certain food products is unavailable, food manufacturers will be allowed to further produce foods with foodservice labeling until retail packaging is available.

Delay of Nutrition Facts Labeling Enforcement

In the same announcement, FDA stated that the agency will not focus on enforcing the updated Nutrition Facts labeling requirements for the remainder of the year.  FDA had previously announced it would not enforce the updated Nutrition Facts labeling requirements until June 2020.

FSIS Guidance on HRI Labeling

Similarly, FSIS announced enforcement discretion for a temporary period for products intended for food service going to retail.

For food products that are produced at a federal establishment and intended for sale to hotels, restaurants, or similar institutions (HRIs), FSIS is allowing modified labels to be applied at the establishment, so the foods can be sold at retail.  The label must include all required labeling elements.  However, FSIS will similarly allow the use of labels that do not include a Nutrition Facts panel so long as the labels do not bear nutrition claims.  FSIS is also waiving the temporary approval requirements for these labels for the next 60 days.  If the label has other deficiencies, however, the establishment must submit the label for temporary approval from FSIS.

Bulk products, including those labeled for HRIs, may be may be distributed to retail where the retailer will repackage the product into smaller consumer size packages and apply a label.  The label applied to the repackaged product will need to bear all required features except for the USDA mark of inspection.  This allows for bulk products to be distributed in a manner that is inconsistent with a statement of limited use on the outer box.  FSIS will not object to such distribution for the next 60 days starting on March 23, 2020.

Finally, products that are in a fully labeled container that contains meat or poultry product in unlabeled protective convers may be distributed to retailers for labeling, even if the container has a statement of limited use.  FSIS stated that it will not object to the container being distributed to retailer and having the retailer apply a label to the proactive covering on a temporary basis.  The labels can either be supplied by the Federal establishment or be a label printed by the retailer.  These labels are required to include all required label elements; however, those applied by the retailer cannot bear the USDA mark of inspection.  FSIS will also waive nutrition labeling for such product, even if an exemption from nutrition labeling does not apply.  FSIS will permit retailers to label products in protective coverings in this manner for the next 60 days starting on March 23, 2020.

Contact Us

Husch Blackwell has experience advising food manufacturers on FDA and FSIS regulations, including regulations on food labeling. Our FDA lawyers have the required scientific and technical backgrounds to assist companies with compliance and navigate the complexities related to the COVID-19 outbreak.  Contact Seth Mailhot, Emily Lyons or your Husch Blackwell attorney.