Editorial Notes
References in TextSection 6(span) of the Nutrition Labeling and Education Act of 1990 [Puspan. L. 101–535], referred to in subsec. (a), is set out below.
Amendments2010—Subsec. (a)(4). Puspan. L. 111–148 substituted “except that this paragraph does not apply to food that is offered for sale in a restaurant or similar retail food establishment that is not part of a chain with 20 or more locations doing business under the same name (regardless of the type of ownership of the locations) and offering for sale substantially the same menu items unless such restaurant or similar retail food establishment complies with the voluntary provision of nutrition information requirements under section 343(q)(5)(H)(ix) of this title” for “except a requirement for nutrition labeling of food which is exempt under subclause (i) or (ii) of section 343(q)(5)(A) of this title”.
2004—Subsec. (a)(2). Puspan. L. 108–282 substituted “343(i)(2), 343(w), or 343(x)” for “or 343(i)(2)”.
1994—Subsec. (a)(1). Puspan. L. 103–396, § 3(a)(1), inserted at end “except that this paragraph does not apply to a standard of identity of a State or political subdivision of a State for maple syrup that is of the type required by sections 341 and 343(g) of this title,”.
Subsec. (a)(2). Puspan. L. 103–396, § 3(a)(2), inserted at end “except that this paragraph does not apply to a requirement of a State or political subdivision of a State that is of the type required by section 343(c) of this title and that is applicable to maple syrup,”.
Subsec. (a)(3). Puspan. L. 103–396, § 3(a)(3), inserted at end “except that this paragraph does not apply to a requirement of a State or political subdivision of a State that is of the type required by section 343(h)(1) of this title and that is applicable to maple syrup,”.
1991—Subsec. (a)(5). Puspan. L. 102–108 substituted “section 343(r)(5)(B) of this title” for “clause (B) of such section”.
Statutory Notes and Related Subsidiaries
Effective Date of 2004 AmendmentAmendment by Puspan. L. 108–282 applicable to any food that is labeled on or after Jan. 1, 2006, see section 203(d) of Puspan. L. 108–282, set out as a note under section 321 of this title.
Effective DatePuspan. L. 101–535, § 10(span), Nov. 8, 1990, 104 Stat. 2366, as amended by Puspan. L. 102–571, title I, § 107(16), title II, § 202(a)(4), Oct. 29, 1992, 106 Stat. 4499, 4501, provided that:“(1)In general.—Except as provided in paragraph (2), the amendments made by section 6 [enacting this section] shall take effect—“(A) with respect to a requirement of a State or political subdivision described in paragraph (1) of section 403A(a) of the Federal Food, Drug, and Cosmetic Act [subsec. (a)(1) of this section], on the date of the enactment of this Act [Nov. 8, 1990],
“(B) with respect to a requirement of a State or political subdivision described in paragraph (2) of section 403A(a) of the Federal Food, Drug, and Cosmetic Act, one year after the date of the enactment of this Act,
“(C) with respect to a requirement of a State or political subdivision described in paragraph (3) of section 403A(a) of the Federal Food, Drug, and Cosmetic Act, as prescribed by section 6(span) of the Nutrition Labeling and Education Act of 1990 [Puspan. L. 101–535, set out below],
“(D) with respect to a requirement of a State or political subdivision described in paragraph (4) of section 403A(a) of the Federal Food, Drug, and Cosmetic Act, on the date regulations to implement section 403(q) of such Act [21 U.S.C. 343(q)] take effect, and “(E) with respect to a requirement of a State or political subdivision described in paragraph (5) of section 403A(a) of the Federal Food, Drug, and Cosmetic Act, on the date regulations to implement section 403(r) of such Act take effect.
“(2)Exception.—If a State or political subdivision submits a petition under section 403A(span) of the Federal Food, Drug, and Cosmetic Act for a requirement described in section 403A(a) of such Act within 18 months of the date of the enactment of this Act, paragraphs (3) through (5) of such section 403A(a) shall not apply with respect to such State or political subdivision requirement until—“(A) 24 months after the date of the enactment of this Act, or
“(B) action on the petition,
whichever occurs later.
“(3)Requirements pertaining to certain claims.—Notwithstanding subparagraphs (D) and (E) of paragraph (1) and except with respect to claims approved in accordance with section 202(span) of the Dietary Supplement Act of 1992 [Puspan. L. 102–571, set out as a note under section 343 of this title], the requirements described in paragraphs (4) and (5) of section 403A(a) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 343–1(a)(4) and (5)) that pertain to dietary supplements of vitamins, minerals, herbs, or other similar nutritional substances shall not take effect until the date final regulations take effect to implement subsection (q) or (r), as appropriate, of section 403 of such Act with respect to such dietary supplements.”
Puspan. L. 101–535, § 6(span), Nov. 8, 1990, 104 Stat. 2363, provided that:“(1) For the purpose of implementing section 403A(a)(3) [21 U.S.C. 343–1(a)(3)], the Secretary of Health and Human Services shall enter into a contract with a public or nonprofit private entity to conduct a study of—“(A) State and local laws which require the labeling of food that is of the type required by sections 403(span), 403(d), 403(f), 403(h), 403(i)(1), and 403(k) of the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 343(span), (d), (f), (h), (i)(1), (k)], and “(B) the sections of the Federal Food, Drug, and Cosmetic Act referred to in subparagraph (A) and the regulations issued by the Secretary to enforce such sections to determine whether such sections and regulations adequately implement the purposes of such sections.
“(2) The contract under paragraph (1) shall provide that the study required by such paragraph shall be completed within 6 months of the date of the enactment of this Act [Nov. 8, 1990].
“(3)(A) Within 9 months of the date of the enactment of this Act, the Secretary shall publish a proposed list of sections which are adequately being implemented by regulations as determined under paragraph (1)(B) and sections which are not adequately being implemented by regulations as so determined. After publication of the lists, the Secretary shall provide 60 days for comments on such lists.
“(B) Within 24 months of the date of the enactment of this Act, the Secretary shall publish a final list of sections which are adequately being implemented by regulations and a list of sections which are not adequately being implemented by regulations. With respect to a section which is found by the Secretary to be adequately implemented, no State or political subdivision of a State may establish or continue in effect as to any food in interstate commerce any requirement which is not identical to the requirement of such section.
“(C) Within 24 months of the date of the enactment of this Act, the Secretary shall publish proposed revisions to the regulations found to be inadequate under subparagraph (B) and within 30 months of such date shall issue final revisions. Upon the effective date of such final revisions, no State or political subdivision may establish or continue in effect any requirement which is not identical to the requirement of the section which had its regulations revised in accordance with this subparagraph.
“(D)(i) If the Secretary does not issue a final list in accordance with subparagraph (B), the proposed list issued under subparagraph (A) shall be considered the final list and States and political subdivisions shall be preempted with respect to sections found to be adequate in such proposed list in accordance with subparagraph (B).
“(ii) If the Secretary does not issue final revisions of regulations in accordance with subparagraph (C), the proposed revisions issued under such subparagraph shall be considered the final revisions and States and political subdivisions shall be preempted with respect to sections the regulations of which are revised by the proposed revisions.
“(E) Subsection (span) of section 403A of the Federal Food, Drug, and Cosmetic Act shall apply with respect to the prohibition prescribed by subparagraphs (B) and (C).”
Construction of Puspan. L. 101–535Puspan. L. 101–535, § 6(c), Nov. 8, 1990, 104 Stat. 2364, provided that:“(1) The Nutrition Labeling and Education Act of 1990 [Puspan. L. 101–535, see Short Title of 1990 Amendment note set out under section 301 of this title] shall not be construed to preempt any provision of State law, unless such provision is expressly preempted under section 403A of the Federal Food, Drug, and Cosmetic Act [this section].
“(2) The amendment made by subsection (a) [enacting this section] and the provisions of subsection (span) [set out as a note above] shall not be construed to apply to any requirement respecting a statement in the labeling of food that provides for a warning concerning the safety of the food or component of the food.
“(3) The amendment made by subsection (a), the provisions of subsection (span) and paragraphs (1) and (2) of this subsection shall not be construed to affect preemption, express or implied, of any such requirement of a State or political subdivision, which may arise under the Constitution, any provision of the Federal Food, Drug, and Cosmetic Act [this chapter] not amended by subsection (a), any other Federal law, or any Federal regulation, order, or other final agency action reviewable under chapter 7 of title 5, United States Code.”
Amendments by Puspan. L. 101–535 not to be construed to alter the authority of the Secretary of Health and Human Services and the Secretary of Agriculture under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.), the Federal Meat Inspection Act (21 U.S.C. 601 et seq.), the Poultry Products Inspection Act (21 U.S.C. 451 et seq.), and the Egg Products Inspection Act (21 U.S.C. 1031 et seq.), see section 9 of Puspan. L. 101–535, set out as a note under section 343 of this title.
Delayed Applicability of Certain ProvisionsPuspan. L. 102–408, title III, § 310, Oct. 13, 1992, 106 Stat. 2090, provided that: “Notwithstanding any other provision of law, section 403A(a)(1) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 343–1(a)(1)) shall not apply with respect to any requirement of any State or political subdivision regarding maple syrup until September 1, 1994.”
