Talk of menu labeling has swirled around the industry since 2010, with the passage of section 4205 of the Affordable Care Act. On November 25, the Food and Drug Administration (FDA) announced the long-awaited menu-labeling regulations, delineating the proper steps restaurants must take to establish calorie counts on menus by the December 1, 2015, deadline.

The detailed guidelines come with three key takeaways for operators: the rule applies to foodservice establishments with 20 or more units; the rule covers anything listed on a menu or menuboard, including alcohol; and someone at each restaurant unit will be responsible for quality assurance appropriate documentation that proves the requirements are met.


What’s a Menu?

The FDA defines a menu as any “primary writing” a customer uses to make an order selection. Beyond the traditional printed menus, this definition includes online menus, menuboards, and menus placed at drive-thru windows in quick service, and encompasses writings that operators may not traditionally think of as menus.

If, for example, above the menuboard or on a separate handout, the restaurant advertises a standard menu item that includes its name or image as well as its price, and it is something a customer could use exclusively to make a purchasing decision, then it's a menu—even if it’s not officially part of the establishment’s menu or menuboard.

The distinction is important, because it means certain “secondary writings,” as defined by the FDA, are not included in the rule. Secondary writings include posters on a storefront, coupons, promo materials, and billboards, as long as they don’t list a menu item and price in conjunction.

Many operators expressed surprise that the FDA includes alcohol in its ruling; alcoholic beverages listed on a menu, such as a beer or wine list, require calories for each item, and a general statement or range of calories is not permissible. However, alcohol not listed on a menu is exempt from the FDA rule.

Scott DeFife, the National Restaurant Association’s executive vice president of policy and government affairs, says the organization has requested additional dialogue with the FDA on alcohol, since the FDA did not include it in the proposed regulations and it is newer within the process.

“They key to all of this is: Is there a price attached next to the item?” DeFife says. “So, if I’m at a restaurant and decide to order a cocktail before dinner, and I just say to the waiter, ‘I’d like an Old Fashioned,’ I don’t look at a menu or make my ordering decision off a menu [hence no exchange of calorie information].

“That’s part of determining what a menu is: the item and the price are in a location together that leads the consumer to make a purchasing decision, based on that printed material. So, if that doesn’t exist, there’s nothing to label.”

Certain foods are automatically exempted from calorie listings, as well. If the item is available for 60 days or fewer or is only offered in one location, it's exempt. Examples of this include limited-time offers, seasonal selections, daily specials, and draft beers that are on rotation for fewer than eight weeks.

In listing calories, restaurants must display the amount of calories in each standard menu item, defined as any dish that is consistently served at all locations. Each size of a standard menu item needs a separate calorie listing, including combo meals. Calories must be declared separately for each flavor or variety of an item, such as ice cream flavors.

The law also extends to self-service food, such as ingredients in a salad bar or alcohol stored in a cooler near the register, as well as food displayed in a case that customers can order.

All menus will need to include a succinct statement of daily recommended calories and state the restaurant has additional nutritional info available by request.


What Compliance Looks Like

The FDA outlines compliance standards for how each restaurant unit is held accountable for menu labeling. Restaurants must have a “reasonable basis” for the nutrient values it declares and can take a number of steps to arrive at the nutrient value, including using a nutrient database, cookbook, or laboratory analysis.

A “responsible individual” who is employed by each establishment must certify the nutrition information is complete and accurate, and sign off that reasonable steps were taken to ensure the preparation and serving size adhere to the factors that determined its nutrient value.

DeFife says restaurants will likely assign this responsibility to the same employee who handles food safety in each unit.

While the FDA's regulations extend only to restaurants that have 20 or more units operating under the same name, independent operators or chains of fewer than 20 units have reason to consider opting in voluntarily to the national standard.

“There are certain jurisdictions that are always interested in being more prescriptive on local businesses, so they may see [the FDA law] as not enough and try to do something more onerous to the independent operator or small chain operator,” DeFife says. Since the FDA law supersedes any local ordinances, “the restaurant can opt in to the federal regime and be sure it is in compliance with the law.”

It's also smart for restaurants that have only 10–15 units to consider opting in, so they have the proper labeling strategies in place if they decide to expand.  

By Sonya Chudgar

Legal, News