[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 261 Introduced in Senate (IS)]

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115th CONGRESS
  1st Session
                                 S. 261

   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 SENATE OF THE UNITED STATES

                            February 1, 2017

   Mr. Blunt (for himself, Mr. King, Mrs. McCaskill, Mr. McCain, Mr. 
 Boozman, Mr. Scott, and Ms. Heitkamp) introduced the following bill; 
     which was read twice and referred to the Committee on Health, 
                     Education, Labor, and Pensions

_______________________________________________________________________

                                 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 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. Any final regulations that are 
                promulgated pursuant to the Common Sense Nutrition 
                Disclosure Act of 2017, and any final regulations that 
                were promulgated pursuant to this clause before the 
                date of enactment of the Common Sense Nutrition 
                Disclosure Act of 2017, shall not take effect earlier 
                than 2 years after the promulgation of final 
                regulations 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).''.
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