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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.

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