In the past few months, consumers may have noticed that some popular chain restaurants have started to display calorie and other nutrition information on menus and placards. The reason can be traced to the release by the Food and Drug Administration (FDA) of its final rules regarding “Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments” in November 2014. The rules take effect on December 1, 2015 and many food establishments have decided to get a jump on compliance.
FDA’s long awaited menu labeling rules implement the nutrition labeling provisions found in section 4205 of the Patient Protection and Affordable Care Act of 2010 (ACA). The ACA, among other things, amends section 403(q) of the Federal Food, Drug, and Cosmetic Act (FDCA), by requiring restaurants and similar retail food establishments (i.e. part of a chain with 20 or more locations doing business under the same name and offering for sale substantially the same menu items) to provide calorie and other nutrition information for standard menu items, including food on display and self-service food. Additionally, section 4205 of the ACA provides that a restaurant or similar retail food establishment that is not a chain may elect to be subject to section 4205’s nutrition labeling requirements by registering every other year with FDA.
Covered Establishments Under the Menu Labeling Rule
In order to fall within the scope of FDA’s new rules, a covered establishment must meet the following criteria:
- The establishment must be a “restaurant or similar retail food establishment” (including bakeries, cafeterias, coffee shops, convenience stores, delicatessens, food service facilities located within entertainment venues (such as amusement parks, bowling alleys, and movie theatres), food service vendors (g., ice cream shops and mall cookie counters), food take-out and/or delivery establishments (such as pizza take-out and delivery establishments), grocery stores, retail confectionary stores, superstores, quick service restaurants, and table service restaurants. Schools, however, are excluded from this definition.
- The establishment must offer for sale “restaurant-type food” (such as foods that are usually eaten on the premises, while walking away, or soon after arriving at another location). Examples of restaurant-type foods that are covered when sold by a facility that is part of a chain with 20 or more locations include: Meals from sit-down restaurants, foods purchased at drive-through windows, take-out food, such as pizza, made-to-order sandwiches ordered from a menu or menu board at a grocery store or delicatessen, foods you serve yourself from a salad or hot food bar, muffins or pastries from a bakery or coffee shop, popcorn purchased at a movie theater or amusement park, ice cream, milk shakes or sundaes from an ice cream store, hot dogs or frozen drinks prepared on site in a convenience or warehouse store, and certain alcoholic beverages.
- The establishment must be “part of a chain with 20 or more fixed locations” (transportation venues such as trains and airplanes are not covered by the rule because they do not have a fixed position or site).
- The establishment must be “doing business under the same name” which means a restaurant or similar retail food establishment must share the same name as other establishments in the chain (the term “name” refers to either the name of the establishment presented to the public or, if there is no name of the establishment presented to the public (e.g., an establishment with the generic descriptor “concession stand”), the name of the parent entity of the establishment).
- The establishment must offer for sale “substantially the same menu items,” meaning that a significant proportion of menu items use the same general recipe and are prepared in substantially the same way with substantially the same food components.
Requirements Under the Menu Labeling Rule
If a food establishment meets the criteria above, that establishment must list calorie information for “standard menu items” adjacent to the name or the price of the associated standard menu item along with the following statement about suggested daily caloric intake: “2,000 calories a day is used for general nutrition advice, but calorie needs vary.” The rule defines “standard menu item” as a restaurant or restaurant-type food that is routinely included on a menu or menu board or routinely offered as a self-service food or food on display.
In addition to calorie labeling on menus and placards, other nutrient information—total calories, calories from fat, total fat, saturated fat, trans fat, cholesterol, sodium, total carbohydrates, fiber, sugars, and protein—must be made available in writing on request. Restaurants are tasked with ensuring that any nutrient declarations for standard menu items are accurate and consistent. The FDA recommends that food establishments use nutrient databases, cookbooks, laboratory analyses, or other reasonable means, including the use of Nutrition Facts on labels on packaged foods that comply with FDA nutrition labeling requirements.
Excluded from the scope of the menu labeling rule, however, are condiments for general use, daily specials, temporary menu items appearing on the menu for less than 60 days per calendar year, custom orders, and food that is part of a customary market test appearing on the menu for less than 90 days under terms and conditions established by FDA.
What About Alcohol Labeling?
Importantly, the final rule regarding menu labeling does not provide a general exemption for alcoholic beverages. In the proposed rule phase, many public comments asserted that alcoholic beverages should not fall within the scope of the definition of “standard menu item.” The FDA disagreed. In its response to public comments on this issue, the FDA explained that alcoholic beverages are considered “food” under the FDCA and should be included within the scope of the final rule. Accordingly, even though the labeling of alcoholic beverage containers under the Federal Alcohol Administration Act is regulated by the Alcohol and Tobacco Tax and Trade Bureau, FDA nutrient content disclosure requirements do apply to alcoholic beverages for sale as standard menu items in covered establishments.
It’s also worth noting here that the FDA released a similar final rule regarding calorie and nutrient labeling for vending machines. Similar to the rules pertaining to menu labeling, the vending machine labeling rules will require operators of 20 or more vending machines to disclose calorie information by posting such information on a sign or sticker near the article of food or selection button. Covered operators must also disclose appropriate contact information on the machines to enable the FDA to contact operators for enforcement purposes. The FDA is allowing two years from the date of publication of the vending machine labeling final rule for covered vending machine operators to comply with the requirements.
State and Local Menu Labeling Laws
For a few cities and states, menu labeling is nothing new. Oregon, California, Maine and Massachusetts have each passed statewide laws requiring certain food facilities to disclose nutrition information for each standard menu item available for sale. Certain cities and counties have also passed menu labeling laws as well including King County, Washington. A few years prior to the passage of the ACA, the King County Board of Health passed legislation requiring certain chain food establishments permitted by Public Health – Seattle & King County to provide nutrition information on their menus and menu boards. After the ACA was passed, King County amended its nutrition labeling regulations to be more closely aligned with federal requirements. For more information about King County’s nutrition labeling requirements, visit: http://www.kingcounty.gov/healthservices/health/nutrition/healthyeating.aspx.