The U.S. Food and Drug Administration recently released two long awaited food labeling rules. The first requires “chain” restaurants and similar retail food establishments to list calorie information on menus and menu boards. The second requires vending machine operators to list calorie information on vending machines. The purpose of the new rule is to make “nutrition information available to consumers in a direct and accessible manner to enable consumers to make informed and healthful dietary choices.” It implements the nutrition labeling provisions of the Patient Protection and Affordable Care Act of 2010 (Affordable Care Act).

Copyright: file404 / 123RF Stock Photo
Copyright: file404 / 123RF Stock Photo

Menu Labeling Rules

What businesses are covered?

To be covered by the final rule, a business must be a restaurant or similar retail food establishment. This is generally defined as a retail establishment that offers for sale “restaurant type food” (see below). In addition, the business must:

  1. be part of a chain of 20 or more locations in the United States,
  2. doing business under the same name, and
  3. offering for sale substantially the same menu items.

The final rule covers a variety of businesses, such as traditional sit-down restaurants as well as quick service, take out/drive through, and delivery establishments. Facilities offering food in entertainment venues, colleges and universities, cafeterias, coffee shops, superstores, grocery and convenience stores are also covered assuming they satisfy the criteria listed above.

The final rule also requires disclosure of calorie information of food from vending machines (see below).

“Restaurant-type food” is generally defined as food usually eaten on the premises, while walking away, or soon after arriving at another location and either (i) served in the establishment, or (ii) processed and prepared primarily in the establishment. In addition to more commonplace examples (such as sit-down meals or take-out food), this can include items at a bakery or coffee shop, self-serve food from a salad bar, and popcorn at a movie theater.

Alcoholic beverages are covered if they are standard menu items that are listed on a menu or menu board. In certain instances the final rule is more flexible for beer and wine and allows for a calorie range to be displayed rather than an individual calorie count.

When must businesses comply?

Businesses affected by the new rule must comply by December 1, 2015.

What must businesses do?

Businesses are required to determine and disclose to consumers the nutritional content of the food they serve.

Covered businesses must:

  1. disclose calorie information on menus and menu boards for standard menu items*;
  2. post a succinct statement concerning suggested daily caloric intake on menus and menu boards**; and
  3. post on menus and menu boards a statement that written nutrition information is available upon request***.

*“Menus” and “menu boards” are defined as “the primary writing of the covered establishment from which a customer makes an order selection.” These include breakfast, lunch, and dinner menus; dessert menus; beverage menus; children’s menus; and online menus. Calorie information for standard menu items must also be declared on signs adjacent to foods on display and self-serve foods.

**The statement must read: “2,000 calories a day is used for general nutrition advice, but calorie needs vary.”

***Upon request, covered businesses must be prepared to provide to consumers the following written nutritional information for standard menu items: total calories, calories from fat, total fat, saturated fat, trans fat, cholesterol, sodium, total carbohydrates, fiber, sugars, and protein.

Copyright: halfpoint / 123RF Stock Photo
Copyright: halfpoint / 123RF Stock Photo

How can businesses comply?

Businesses are required to have a reasonable basis for the nutrient content they declare. They can determine nutrient values via nutrient databases, cookbooks, laboratory analyses, the Nutrition Facts Label on packaged foods, or use other reasonable methods. Businesses must take reasonable steps to ensure that the way food is prepared and the portions they serve adhere to the factors used to determine and disclose the nutrient values.

Businesses may have to substantiate their disclosures. If the FDA requests, a business must provide information that substantiates its published nutrient values, including the methods and data it used.

Additionally, there are requirements for how businesses list the calorie content of each standard menu item: The number of calories on the menu or menu board must be listed

  1. next to the name or price of the associated standard menu item;
  2. in a type size no smaller than the name or price of the menu item, whichever is smaller;
  3. in the same color used for the menu item’s name (or a color at least as conspicuous); and
  4. with the same contrasting background used for the menu item’s name (or a background at least as contrasting).

Similarly, the succinct statement must be posted:

  1. prominently and in a clear and conspicuous manner;
  2. in a type size no smaller than any calorie declaration appearing on the same menu or menu board;
  3. in the same color used for the calorie declarations (or a color at least as conspicuous); and
  4. with the same contrasting background used for the calorie declarations (or a background at least as contrasting).

What’s on the menu for affected businesses?

The FDA’s final rules are highly detailed and include substantiation and enforcement provisions. Additionally, businesses covered by the final menu labeling rule have less than a year to comply. Experienced counsel can help businesses understand whether they are affected and, if so, how best to satisfy the new standards. Next week, we’ll look at how the rules impact vending machines.