Changes Ahead For Chain Restaurant Menus

April 01, 2010

Last week, President Obama signed the Patient Protection and Affordable Care Act with significant fanfare.

Last week, President Obama signed the Patient Protection and Affordable Care Act with significant fanfare. For the food industry this bill was of particular importance as it includes a provision requiring mandatory nutrition labeling for food sold at chain restaurants and similar retail food establishments, notes The Food Institute in its most recent weekly report. Chains of 20 or more units will be directly affected by this change.

Specifically, the act amends the Federal Food, Drug, and Cosmetic Act by requiring that food sold at restaurants and vending machines that are part of a chain with 20 or more locations, or vending machines, must provide certain nutrition labeling information. Until now, restaurants and similar retail food establishments have been exempt from the nutrition labeling requirements that generally apply to packaged foods.

The new requirements are aimed at providing consumers with greater nutrition information when consuming food away from home, while providing uniform nutrition labeling requirements that restaurants can implement nationwide.

Implementing the mandate however, could prove costly and cumbersome for restaurants. In some areas, states and local governments have already mandated such labeling but this federal action will pre-empt or supersede those requirements. This means that even those restaurant chains that have complied with state and local laws may have to change their menu labels to meet the federal laws.

And this will not come cheap. For example, the cost to add calorie information to a sign in a fast food restaurant may range from $200 to $300 or more, reports The food Institute, but before that can be done, the foods would have undergo lab testing to determine the exact nutritional value. This could cost thousands of dollars for restaurants, and would of course have to be performed every time a new item is added to a menu although items on menus for less than 60 days would not be subjected to the law. Consumers may see an increase in the use of digital menu boards that can be easily changed as a result, although the initial investment for a chain to switch could be considerable.

The mandatory nutrition labeling requirements are required to be implemented within one year once the regulations are finalized.
The implementing regulations will specify the format and manner in which required nutrition information must be presented such as type size and contrast. FDA will be called upon to work through the practical challenges presented by nutrition labeling of restaurant foods which are served in numerous forms.

The legislation requires mandatory nutrition labeling of standard menu items offered for sale in a restaurant or similar retail food establishment that is part of a chain with 20 or more locations doing business under the same name (regardless of type of ownership) and offering substantially the same menu items.

Restaurants and similar retail food establishments covered by the legislation are required to disclose: (1) calories on the menu or menu board (including drive-through menu boards), and (2) additional nutrition information available in writing in the establishment upon the consumer’s request.

In addition to disclosing the number of calories per standard menu item as usually prepared and offered for sale, the menu or menu board must also include a succinct statement concerning the suggested daily caloric intake which FDA will specify
Finally, menus and menu boards must provide a clear and conspicuous statement notifying consumers of the availability of additional nutrition information.

Covered establishments are also required to make available to consumers upon request additional nutrition information in writing (e.g., a brochure), on the premises. This additional nutrition information must include the amounts of the following macronutrients per serving size or other unit of measure: calories, calories from fat, total fat, saturated fat, cholesterol, sodium, total carbohydrates, sugars, dietary fiber, and protein. Unlike packaged foods, section 4205 does not require declaration of vitamins and minerals for standard menu items.

For foods that are available at self-service facilities (e.g., a salad bar, buffet line or cafeteria line) and self-service foods or beverages that are on display and visible to consumers, covered establishments are required to place a sign adjacent to each food item that discloses calories on a per item or per serving basis.

Section 4205 also imposes mandatory nutrition labeling for foods sold from a vending machine that is operated by a person engaged in the business of owning or operating 20 or more vending machines. Unless the vending machine permits prospective consumers to examine the Nutrition Facts panel before purchasing the food or otherwise provides visible nutrition in formation at point of purchase, the operator must provide a sign in close proximity to each article of food or selection button that includes a clear and conspicuous statement of the number of calories in that article of food.

Importantly for restaurants and similar retail food establishments, this provision preempts nutrition labeling requirements  such as State and local laws that require calories or other nutrients to be posted on the menu or menu board) and requirements arising under state fair trade statutes, that are materially different from the new federal nutrition labeling requirements.