Industry News | November 8, 2017 | By Danny Klein | QSR Exclusive Brief

FDA Provides Additional Menu-Labeling Guidance

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The U.S. Food and Drug Administration provided menu-labeling guidance Tuesday, perhaps finally setting the stage for the oft-delayed rule’s implementation. 

According to the rules, chain restaurants with 20 or more locations and groceries will need to post calorie information on their menus next May.

The rules, originally set to take hold in 2015, have been delayed twice. In May 2017, President Donald Trump’s FDA announced that the compliance date was being extended from May 5 to May 7, 2018. “We are taking this action to enable us to consider how we might further reduce the regulatory burden or increase flexibility while continuing to achieve our regulatory objectives, in keeping with the Administration’s policies,” the FDA said in a statement at the time.

Read the FDA’s Entire Menu-Labeling Guidance Here

The ObamaCare rule was initially issued in December 2014 and moved back twice under former President Barack Obama’s administration.

FDA Commissioner Scott Gottlieb issued a statement saying the FDA was “fully committed to implementing these provisions on the timetable we’ve already announced.”

“But I’m equally committed to making sure we implement these provisions in a way that is practical, efficient and sustainable. We took to heart questions from stakeholders about how these provisions would work as a practical matter in the real world. By being thoughtful and getting it right now we have before us an opportunity to implement these provisions across the diverse retail food landscape to reach our important underlying goal sooner,” he said in the statement.

While a major step, there are still concerns for operators. The guidance issues “nonbinding recommendations” and left a few topics in the air. One example is draft beer, which the FDA addressed by saying: “It depends.”

“For beers that are listed on your menu or menu board and meet the definition of a standard menu item, you must declare the calories and other nutrition information for these standard menu items,” the FDA wrote. “This requirement also applies to beers that are on tap if they are also listed on your menu or menu board. Depending on how these beer selections are listed on your menu or menu board, declaring the calories in a range may be appropriate. However, for beer that is served on tap and is not listed on your menu or menu board, these beers are considered foods on display. Alcoholic beverages that are foods on display and are not selfserve are exempt from the menu labeling requirements.”

Also, beers listed on a menu or menu board for less than 60 days per calendar year meet the definition of a temporary menu item and are therefore exempt from menu-labeling requirements.

Another big issue centered on pizza chains. The America Pizza Community, which represents Domino’s, Papa John’s, Little Caesars, and others, expressed concerned over pizza’s customizable nature and the complications it would create with menu labeling.

The new FDA guidance offers more flexibility with calorie ranges, but does not allow online compliance, an issue that pizza chains have brought up in the past.

“Although you declare calories on your online menu, if you choose to use a menu board in your covered establishment you must provide calorie declarations for standard menu items listed on your menu board. This includes online menus if consumers can order online. However, in lieu of having a menu board, you may use other alternatives such as electronic devices for customers to place their order (e.g., an in-store tablet or electronic kiosk). Establishments may also use other options such as hand-held paper menus or laminated menus on the counter for ordering. Thus, there are both innovative and simple solutions that may be used to disclose the calorie and other nutrition information in lieu of having a menu board,” the FDA wrote.

The National Restaurant Association issued a statement on the guidance.

“We are pleased that the Food and Drug Administration (FDA) took into account the comments from our industry in their menu labeling supplemental guidance document. We will continue to work with the FDA to successfully implement federal menu labeling by May 2018," said Cicely Simpson, executive vice president of Public Affairs, National Restaurant Association.

Gottlieb started his statement by saying that he, like many Americans, want to know what’s in the food they eat.

“But information about the foods we get in restaurants and in take-out meals isn’t consistently available. Often we’re left without good insight into how many calories we’re consuming away from our homes, or what type of nutrition we may receive. At a time when more than a third of U.S. adults are obese and more people are trying to make healthier lifestyle decisions, we know making informed choices about our diets has the potential to save and improve lives,” he said.

Here is a rundown of what the rules entail:

Restaurant and retail chains will be required to list calorie counts for individual foods and beverages as well as combo meals next to the name or price of the item. Where self-service foods are offered, such as at salad bars and buffets, calories must be shown on signs near foods.

Restaurants must also post that more complete nutrition information is available upon request. This information must cover:

  • Total calories
  • Calories from fat
  • Total fat
  • Saturated fat
  • Trans fat
  • Cholesterol
  • Sodium
  • Total carbohydrates
  • Fiber
  • Sugars
  • Protein

Nutritional facts must also be substantiated in labs to prove that they are accurate.

Menus and menuboards must also provide context by stating that it is recommended that adults consume 2,000 calories a day, but that individual calorie needs vary, says the FDA’s website. For restaurants that serve children, the following statement is acceptable: “1,200 to 1,400 calories a day is used for general nutrition advice for children ages 4 to 8 years and 1,400 to 2,000 calories a day for children ages 9 to 13 years, but calorie needs vary."

Who Must Follow the Rule?

Any restaurant or retailer serving food for away-from-home consumption with more than 20 locations “doing business under the same name … and offering for sale substantially the same menu items” will be required to label their menus and signage with calorie counts, says the FDA website. This includes franchises that operate with the same name as other franchises or parent companies.

The rule also applies to most categories of foodservice:

  • Items served at full-service and quick-service restaurants, bakeries, and coffee shops, including foods from drive-thru windows
  • Items available for delivery or take-out
  • Self-serve options, including buffets and salad bars
  • Alcoholic beverages that are listed on menus
  • Foods served in entertainment venues, such as movie theaters and stadiums
  • Certain grocery and convenience store items

In addition, when multiple varieties of foods or meals are available, the calories for each variety must be listed. If more than two choices are available, calories must be represented as a range, such as 150-300 calories. Combo meals with multiple choices will also have to label calorie counts for two items as above or as a range when there are three or more options.

Are There Exceptions to What Must be Posted?

Only items that are regularly available are covered under the rule, so daily specials and limited-time offers are not required to be listed if they are available for fewer than 90 days. Condiments are also not required to have calorie counts listed, nor are custom orders.

In addition, foods sold in some segments do not have to be labeled:

  • Foods that are intended for more than one person and are sold at deli counters
  • Bottles of liquor that are stored or displayed behind a bar
  • Food served from food trucks, airplanes, or trains
  • Items served at schools that are part of the USDA’s school feeding programs