Over two years ago, on December 1, 2014, the U.S. Food and Drug Administration (“FDA”) published a food labeling rule requiring “chain” restaurants and similar retail food establishments to list calorie information on menus and menu boards, including food on display and self-service food (the “Rule”). On May 5, 2017, the FDA will begin enforcing the Rule. Businesses covered by the Rule must be in compliance by May 5, 2017.
The Rule implements the nutrition labeling provisions of the Patient Protection and Affordable Care Act of 2010, which is intended to give consumers direct, point-of-purchase access to nutritional information, including the calorie content of foods. When the Rule was published, we blogged about the Rule’s impact on restaurants and vending machines.
Who does the Rule apply to?
The Rule applies to any chain and franchised food business which meets the following criteria:
- It is part of a system with 20 or more locations;
- All of the restaurants or food establishments in the chain do business under the same name; and
- All of the restaurants in the chain offer for sale substantially the same restaurant-type food menu items.
What must covered businesses do?
Covered businesses are required to determine and disclose to consumers the nutritional content of the food they serve, including by:
- Disclosing calorie information on menus and menu boards for standard menu items;
- Posting a succinct statement concerning suggested daily caloric intake on menus and menu boards; and
- Posting on menus and menu boards a statement that written nutrition information is available upon request.
The Rule was originally slated to come online on December 1, 2015. In response to multiple requests from stakeholders to give businesses more time to comply, the FDA extended the compliance deadline until December 1, 2016. However, per applicable law, the Rule could not be enforced until one year after the FDA published a Level 1 guidance with respect to nutrition labeling of standard menu items. The FDA did so on May 5, 2016, extending the enforcement deadline until May 5, 2017. Recently, the FDA made clear that May 5, 2017 was the deadline for both compliance and enforcement 017.
In addition to the Rule itself, food establishments affected by the Rule should review the FDA’s Small Entity Compliance Guide, which restates the Rule’s requirements in plain language. The Guide is organized in a question/answer format. We’ve previously blogged in detail on the Guide, which includes information on multiple topics, including:
- What establishments the Rule does and does not cover;
- What types of food the Rule does and does not cover;
- How to label menus and other displays with nutritional information; and
- How to determine nutritional content of foods, including how to substantiate menu labels to the FDA.
Additional industry guidance is also available at the FDA’s website.
The Rule is highly detailed and includes requirements for restaurants to substantiate their nutritional information claims and clarifies how the Rule will be enforced. Experienced counsel can help businesses understand whether they are affected and, if so, how best to satisfy the new standards.