Duff on Hospitality Law

This extension of the compliance deadline gave many businesses much-needed time to decipher and implement the new rules. In support of that effort, in September, the FDA released a set of draft “Guidance for Industry” consisting of question-and-answer discussions of the application of the rules to various hypothetical scenarios. The FDA is careful to stress that this guidance is “non-binding,” and that the “recommendations” therein reflect only the agency’s “current thinking” about the rules. In other words, take the guidance for what it’s worth, because it “does not operate to bind FDA or the public.”

With that rather hefty caveat in mind, hoteliers nevertheless may find that the guidance is worth quite a bit more than a grain of salt. That is because, nestled within a discussion about executive dining rooms, the FDA offers this nugget: “[E]stablishments that do not offer for sale standard menu items . . . for example, hotels that offer complimentary breakfast and hospitals that provide food at no cost to the consumer, would not be considered covered attachments.” That’s because the breakfast isn’t “sold” to customers – it’s given away. So for now, it looks like those croissants and morning coffees your guests enjoy gratis are free and clear of both cost to the customer and the ambit of the FDA’s labeling rules . . . unless the FDA changes its (non-bound) mind, of course.