Mar.27.2020

As a result of the COVID-19 Pandemic, restaurants may have food on hand that they can no longer use to prepare food for patrons. Similarly, food manufacturers may have inventory labeled for use in restaurants that is no longer in demand by the restaurant industry. To encourage the further distribution of this food during the ongoing public health emergency, which may otherwise go to waste, the U.S. Food and Drug Administration (“FDA”) temporarily changed its policy to allow restaurants and food manufacturers to sell packaged foods (intended for restaurant use), that lack Nutrition Facts labels, directly to consumers and businesses. Under normal circumstances, if restaurants sell packaged foods directly to consumers, or to other businesses for sale to consumers, nutrition information may be required. See 21 CFR 101.9(a)(1) and 101.9(j)(2).

FDA’s Final Guidance, released on March 26th, explains that the agency will not object to restaurants and food manufacturers selling packaged foods (both perishable and non-perishable) directly to consumers without a Nutrition Facts label, provided that the food does not have any nutrition claims, and the packaging contains other required information, including:

  • “a statement of identity,
  • an ingredient statement,
  • the name and place of business of the food manufacturer, packer, or distributor,
  • net quantity of contents, and
  • allergen information required by the Food Allergen Labeling and Consumer Protection Act.”

FDA has also indicated that if retail packaging for certain food products is unavailable, it will not object to further production of such food products until the retail packaging is available.

This policy is in effect only for the duration of the COVID-19 public health emergency declared by the U.S. Department of Health and Human Services.

For more information, please contact the professional(s) listed below, or your regular Crowell & Moring contact.

Photograph of John Fuson

John Fuson
Partner – Washington, D.C.
Phone: +1 202.624.2910
Email: jfuson@crowell.com

Photograph of Chalana Netasha Damron

Chalana Netasha Damron
Counsel – Washington, D.C.
Phone: +1 202.624.2566
Email: cdamron@crowell.com

Photograph of Emily Tucker

Emily Tucker
Associate – Washington, D.C.
Phone: +1 202.688.3445
Email: etucker@crowell.com