After several years of public comment and redrafting, the U.S. Food and Drug Administration (FDA) has issued two final rules requiring that calorie information be listed on menus and menu boards in chain restaurants, similar retail food establishments and vending machines with 20 or more locations. These new rules follow a set of federal menu labeling requirements.
Americans eat and drink about one-third of their calories away from home, and spend almost half of their food dollars on such foods. Unlike packaged foods that are labeled with nutrition information, foods in restaurants typically do not have nutrition information that is readily available when ordered by the consumer.
Dietary intake data have shown that obese Americans consume over 100 calories per meal more when eating food away from home, in contrast to when meals are prepared and consumed at home. FDA has promulgated these two new rules to provide consumers information about the nutritional content of food, to enable healthier food choices and mitigate the trend of increasing obesity in America.
FDA was authorized to promulgate both new rules by the Affordable Care Act (Pub. L. 111-148), which was signed into law on March 23, 2010. Section 4205 of the Affordable Care Act amended 403(q)(5) of the Federal Food, Drug, and Cosmetic Act (FDCA) by, among other things, creating new clause (H) to require that certain chain restaurants and similar retail food establishments with 20 or more locations disclose certain nutrient information for standard menu items. FDA has the authority to issue new rules under sections 403(a)(1), 403(q)(5)(H), and 701(a) of the FDCA (21 U.S.C. 343(a)(1), 343(q)(5)(H), and 371(a)). Section 701(a) of the FDCA vests the Secretary of Health and Human Services, and, by delegation, the FDA with the authority to issue regulations for the efficient enforcement of the FDCA. The new regulations are intended to provide consumers with more nutritional information about the foods they eat outside of the home.
The two new rules, which are accessible in the Federal Register, are summarized as follows:
- Menu Labeling final rule: Applies to restaurants and similar retail food establishments if they are part of a chain of 20 or more locations, doing business under the same name, offering for sale substantially the same menu items and offering for sale restaurant-type foods. Restaurants and similar retail food establishments will have one year to comply with the menu labeling requirements.
- Vending Machine final rule: Requires operators who own or operate 20 or more vending machines to disclose calorie information for food sold from vending machines, subject to certain exemptions. Vending machine operators will have two years to comply with the requirements.
Food establishments covered by the Menu Labeling final rule will be required to clearly and conspicuously display calorie information for standard items on menus and menu boards, next to the name or price of the item. Exemptions from the new rule include (i) Seasonal menu items offered for sale as temporary menu items; and (ii) daily specials and condiments for general use typically available on a counter or table.
The FDA considered more than 1,100 comments from stakeholders and consumers in developing these two new rules. In response to comments, the FDA narrowed the scope of foods covered by the rules to more clearly focus on restaurant-type food, made other adjustments such as ensuring the flexibility for multi-serving dishes like pizza to be labeled by the slice rather than as a whole pie, and provided establishments additional time to comply with the rule.
In addition, the Menu Labeling final rule now includes certain alcohol beverages served in covered food establishments and listed on the menu, but still provides flexibility in how establishments meet this provision. The majority of comments supported including alcohol because of the impact on public health. The Menu Labeling rule also includes food facilities in entertainment venue chains such as movie theaters and amusement parks.
To help consumers understand the significance of the calorie information in the context of a total daily diet, menus and menu boards now will be required include the statement:
"2,000 calories a day is used for general nutrition advice, but calorie needs vary."
The Menu Labeling final rule also requires covered establishments to provide written nutrition information about total calories, total fat, calories from fat, saturated fat, trans fat, cholesterol, sodium, total carbohydrates, fiber, sugars and protein, when that information is requested by a consumer. The ability to request such information is to be noted on menus and menu boards.
The two final rules are available in the Federal Register:
Final Rule: Calorie Labeling of Articles of Food in Vending Machines
For more information regarding the impact and implication of these rules, please contact GrayRobinson’s Food Law Group at foodlaw@gray-robinson.com or (866) 382-5132.