This past week, several consumer actions made headlines that affect the retail industry.

Grocers and Convenience Stores Argue FDA’s Menu Label Rule Too Broad

The National Grocers Association (“NGA”) and the National Association of Convenience Stores (“NACS”) filed a citizen petition claiming that the FDA’s final menu rule, effective on May 5, 2017, requiring calorie counts on menus for “restaurants and similar retail food establishments,” is overbroad and imposes significant costs for compliance. The NGA and NACS petition makes several arguments for delaying or changing the proposed final rule, including: (1) the $1 billion compliance cost estimate over 10 years is too low, and instead the $1 billion will be “initial” costs to comply, (2) the FDA has failed to show any evidence that the rule will actually address obesity and consumer health, so the rule would violate the First Amendment, and (3) the rule sweeps in any business that sells prepared food, which was not contemplated by Congress in the Affordable Care Act. The FDA stated that it is considering the petition and an extension of time.

NAD Pushes Back on Discover’s Credit Card Advertising Claims

On April 11, 2017, the NAD recommended that Discover Financial Services modify or discontinue its claim that Discover cardholders could track their FICO credit scores for free on monthly statements and online, but that Capital One Quicksilver cardholders could not do so. During its investigation, the NAD evaluated several other claims that Discover cards carried certain features that Quicksilver cards did not, including: (1) redeeming rewards for cash at any time and for any amount, and (2) freezing the account on their mobile app to prevent unauthorized purchases. Discover voluntarily decided to discontinue those two claims and agreed to modify its claims regarding comparisons of customers’ ability to track their FICO scores.