Philadelphia Seeks Exemption from Preemption for Menu Labeling Ordinance

The Food and Drug Administration (FDA) recently opened a docket pertaining
to a petition filed by Philadelphia seeking to exempt from preemption a menu
labeling ordinance that requires chain restaurants and retail food facilities
in the city to provide calorie, fat and sodium information for the food and
beverage products they sell.

According to the petition, the ordinance meets three requirements under the
Federal Food, Drug, and Cosmetic Act allowing FDA to grant an exemption
from preemption: the ordinance “was designed to address a particular local
need for information which need is not met by the requirements” of federal
labeling law, the exemption from preemption “would not unduly burden
interstate commerce,” and the exemption “would not cause any food to be in
violation of any applicable requirement under federal law.”

Philadelphia contends that while Congress required uniformity in chain
restaurant menu labeling as part of the Patient Protection and Affordable Care
Act of 2010, 21 U.S.C.S. § 343-1(a), it “specifically left untouched subsection (b)
which provides that the Secretary of Health and Human Services may exempt
any state or local requirement from subsection (a) if the aforementioned three
factors are met.”