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Thursday
Nov162017

Restaurant Industry Gets Another Chance to Chime in on Menu Labeling

CalBar Certified Franchise & Distribution Law Specialist

by Barry Kurtz

818-907-3006

 

Franchisors in the food service industry have until January 18, 2018 to comment on the latest version of the Food & Drug Administration’s Menu Labeling Guidance. The FDA released the draft November 7th. This version includes pictorial suggestions for how consumer information might be displayed under certain circumstances.

The currently non-binding recommendations aim to clarify options for menu labeling compliance and will eventually affect any food and beverage retailer, including those selling self-service foods and buffet operators.

 

Special Orders: The ABCs of Menu Labeling

 

Caloric information is the key ingredient in menu labeling requirements. But the FDA is now taking a more cooperative approach to handling special situations:

All You Can Eat: In the current draft, signage regarding serving size and calories are not required next to every food item offered on a buffet. However, the info must be available to consumers in other forms, i.e. gel window-clings on sneeze guards or on menu boards.

Speaking of menu boards, restaurant owners need not provide one at their businesses if they do not already display a menu.

On the other hand, if a menu board is available on site, it must be updated to include nutrition information. Digital kiosks or other devices, hand-held menus, etc., may also be used to convey consumer info about nutrition.

By the Bucket or Bowl: Family style restaurants like Maggiano’s will be required to provide caloric info for the whole (multiple serving) menu item sold. However, family-style restaurants may relay additional information, such as the suggested number of individual servings and calories per serving of that item. The FDA offers this example:

Family-Style Salad: 1,200 Cal: 150 Cal/serving, 8 servings

Beer, Wine, Cocktails: If the choices are listed on a menu or menu board, nutrition should also be displayed. “Display” foods are not subject to the labeling requirements. These include beers served on tap.

Seasonal beers (pumpkin spiced ale, anyone?) on the menu are also exempt from labeling requirements provided they are not available for more than 60 days per year.

Customer Crafted Menu Items: The FDA now offers “build-your-own” restaurants like Chipotle or PizzaRev a bit of flexibility. The Administration suggests this type of restaurant group customer options, i.e. pizza crusts, sauce choices and toppings so that consumers can quickly calculate which options provide the most and least amount of calories per slice or serving. 

Chef’s Choice: Food selections based on seasonal produce or other items that change on a daily basis are not subject to the nutrition labeling guidance, UNLESS, these selections appear regularly. So a restaurant that serves clam chowder every third Friday will have to provide nutrition information.

Self Service Foods: Food and beverages in soda machines; grab and go donut cases, sandwich or salad coolers; rotisserie chicken warming carts and similar displays and dispensers all fall under the self-service or food-on-display categories.

Pre-packaged foods like sandwiches prepared on site but already wrapped for customer convenience should display an FOP, or “front of pack” label with calorie information.

Donut cases and beverage dispensers found in grocery or convenience stores contain unpackaged foods. A label can be affixed to the dispenser or display case detailing information for each choice available, or displayed on signage nearby.

 

To Lab Test, or Not To Lab Test?

 

 

The FDA will not require restaurants to submit menu items to food labs to determine nutrition information. But legitimate options for determining calorie and other data are required. The Administration recommends using one of the following:

  • Laboratory Analysis
  • USDA National Nutrient Database
  • Trade Association or Industry Databases
  • Alcohol and Tobacco Tax and Trade Bureau Methods for Analysis
  • Cookbook Listings
  • Other reasonable means

If opting for other reasonable means, records must be maintained at corporate headquarters or the restaurant’s main office in case the FDA requests the data and method used to substantiate the information.

 

Chain Stores and Co-Ops

 

Independent franchises, cooperatives, grocery chains and similar businesses not selling substantially similar foods from location to location are not considered “covered establishments” as far as the FDA Menu Labeling Guidance is concerned. “Covered Establishments” include businesses that:

  • Have 20 or more locations
  • Do business under the same name
  • Sell substantially same menu items
  • Sell food eaten on premises or food that may be taken away

So a gasoline franchisee of a major chain that also operates an independently owned mini-mart under a different name would not be considered a “covered establishment”.

 

The Wrap Up

 

Again, the Administration decided to take a more flexible approach in their rules regarding nutrition labeling, and work more cooperatively with covered establishments:

. . . our typical approach following an inspection would be to raise any compliance concerns with the most responsible person (e.g., the manager or owner) at a covered establishment during a close-out inspection meeting or in regulatory meetings with that establishment. If post-inspection issues remain, we may send a letter to the establishment asking for the firm to come into compliance. Any enforcement activities we pursue will be consistent with our public health priorities. . .

All in all, this seems like a much more feasible plan than the 2014 Final Rule previously published.

Barry Kurtz is the Chair of Lewitt Hackman's Franchise & Distribution Practice Group.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Monday
Jul102017

Trimming the Fat: Restaurant Menu Labeling Rule Under Further Review

Franchise LawyerChair, Franchise & Distribution Practice Group

 

by Barry Kurtz

818-907-3006

 

In 2010 as part of the Patient Protection and Affordable Care Act a/k/a “Obamacare”, the federal government set provisions mandating restaurant chains provide nutrition information for menu items. The U.S. Food and Drug Administration (FDA or Agency) was supposed to come up with guidelines for compliance.

FDA Menu Rules for Coupons

The Agency did so, issuing its final rule in December 2014. Certain parties requested extended compliance deadlines in July 2015, the FDA announced the following December that concerned restaurants should meet requirements by December 1, 2016; however, on December 30, 2016 the Agency decreed menu labeling enforcement was to begin May 5, 2017.

Or not. In May, the FDA extended the menu labeling compliance deadline once again, pushing everything back to May 7, 2018 to give the Agency time to “consider how we might further reduce the regulatory burden”. Interested franchisors have until August 2, 2017 to weigh in on the interim final rule.

Current Menu Label Requirements

As the FDA Interim Final Rule for restaurants stands now (see: 2016 Labeling Guide for Restaurants), succinctly covered in a mere 58 pages, menu labeling will be required of all covered establishments – restaurants and similar retail food sellers with 20 or more locations doing business under the same name and selling substantially similar menu items. 

Covered establishments may include bakeries, coffee shops, convenience stores and concession stands that meet the above criteria. Eateries that are not considered covered establishments generally don’t meet the 20 location rule. But there are also exemptions for hospitals, schools, transportation carriers (food services on planes and trains), food trucks and sidewalk carts.

Restaurant nutrition labeling will be required on standard menu items, combination meals, variable menu items, side dishes and beverages. Foods that will not require labeling under the current rule include alcoholic beverages (unless they appear on a menu or menu board), condiments, daily specials, temporary market items, custom orders and market-test menu items.

In house and takeout menus and menu boards should include: 

  • Number of calories for each menu item for sale, adjacent to the item or the item’s price, and listed as “cal” or “calories”.

  • Statement similar to: “2,000 calories a day is used for general nutrition advice, but calorie needs vary.”

  • Statement similar to: “Additional nutrition information available on request.” 

More Food for Thought (and Rule Commenting)

FDA Nutrition LabelingMany of the provisions in the menu labeling rule have to do with remote points of sale and consumer impulse choices. Generally, these situations occur on premises.

But offsite, the general thinking is this: if a consumer sees restaurant marketing that lists menu items and provides info like a phone number or web link for the consumer to order immediately, nutrition information should be provided for that menu item. For example: 

  • If a pizza chain offers a discount or BOGO (Buy One Get One) offer attached to a takeout menu that already provides nutrition labeling, no further information for that discounted food item is needed on the coupon. On the other hand, if the offer is a “stand alone” coupon, e.g. paper flier without nutrition info affixed to a pizza delivery box, that coupon could be in violation of the menu labeling rule as currently written.

  • Topping options, e.g. mushrooms for pizza, chocolate sprinkles for ice cream, etc. should also have calories listed.

  • Restaurants that offer appetizer or catering platters, should consider listing calories for the entire platter, or per discrete serving unit: “appetizer sampler: 80 cal/buffalo wing, 5 wings”.  

If you plan to weigh in on these or other aspects of the Agency’s proposed plans for nutrition labeling, follow these FDA commenting instructions for written and electronic submissions. Again, input should be properly delivered to the Agency before August 2, 2017.

Barry Kurtz is a Certified Franchise & Distribution Law Specialist in California.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

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