Well Done

Three years after FDA’s final rule on menu labeling was published,[1] the compliance date for the rule finally went into effect on May 7.[2] The federal menu labeling rule requires that calorie information—which is already included on most packaged foods—must be posted on menus and menu boards in chain restaurants.

The menu labeling requirements apply to retail food establishments that are part of chains with 20 or more locations. “Covered establishments” must post the following on menus and menu boards:

• The number of calories contained in standard menu items
• The statement: “2,000 calories a day is used for general nutrition advice, but calorie needs vary.”
• The statement: “Additional nutrition information available upon request.”

To provide some guidance on industry questions of how to implement the rule, the FDA issued a guidance document on Monday with more detail on some areas of confusion.[3] The guidance addressed, for example:

Fat declaration – Given the changing nutritional approach to “calories from fat,” FDA stated in its guidance document that it intends to exercise enforcement discretion with regard to the requirement to provide additional written nutrition information on “calories from fat,” because “current science supports a view that the type of fat is more relevant with respect to the risk of chronic disease than the overall caloric fat intake.”

Declarations for self-service buffets – Individual signs are not required next to each buffet item; rather, for example, one sign listing the calorie declaration for multiple food items, along with the names of those food items, may be used instead. In addition, the required statements about total daily calories and that additional nutritional information is available upon request are not required on every sign for self-service foods, so long as they are on signs either in close proximity to the food or on a large menu board that consumers can easily read.

How to view marketing materials – FDA also explains in the guidance document that marketing materials are not considered menus or menu boards requiring the calorie values and other two statements. Menus are “the primary writing of the restaurant or other similar food establishment from which a consumer makes an order selection,” whereas marketing materials have the primary purpose to “entice” customers into the establishment or to purchase an item. Therefore, marketing materials such as coupons, posters in store windows, signs on gas pumps, paper inserts, and mail-delivered coupons would generally not be considered menus or menu boards.

How to calculate calorie values – With regard to calculating the calorie and other nutritional information, covered establishments must have a reasonable basis for their nutrition statements. FDA states in its guidance document that a reasonable basis does not require an establishment to conduct a laboratory analysis. An establishment can instead rely on other means to arrive at its nutrition values, such as calculations based on nutrient databases such as the USDA National Nutrient Database for Standard Reference, use of Nutrition Facts on the labels of packaged foods, and even values listed in cookbooks.

Enforcement posture – While covered establishments must technically be in compliance with these requirements as of Monday, FDA has stated that it will work cooperatively with the establishments for the first year to help them achieve compliance and that it does not intend to penalize covered establishments for minor violations of the rule.

If you have any questions on the federal menu labeling requirements, please contact Bob Hibbert or Hilary Lewis.