Two of the lesser-known provisions of the 2010 Affordable Care Act require that chain restaurants list calories on menus and menu boards; and that calories also be declared for foods sold in vending machines.
In December 2014, the Food and Drug Administration (FDA) issued final rules implementing these provisions. The menu labeling rule replaces a patchwork of state and local requirements—such as those in California, New York City and Philadelphia—so that consumers now have access to uniform information and restaurants will have a single standard with which to comply.
The rules most directly affect restaurants and similar retail food establishments, as well as vending machine operators. However, in practice, the regulations also impact food processors. This article summarizes the key provisions of each rule and highlights why this sweeping new law is of interest to food processors.
Menu Labeling Rule
The new menu labeling rule applies to restaurants and similar retail food establishments (SRFEs) that are part of a chain with 20 or more locations doing business under the same name and offering for sale substantially the same menu items.
The term “restaurants and SRFEs” means those establishments that sell “restaurant-type food,” except for schools. In general, restaurant-type food is eaten on the premises, while walking away, or soon after arriving at another location; and is covered by the exemptions from packaged food nutrition labeling for restaurant-type foods. In comparison, grocery-type foods, which are not covered by the final rule, are typically stored for use at a later time or are further prepared before eating.
This definition of restaurants and SRFEs is different than that proposed by FDA in 2011, and now covers grocery stores, convenience stores, superstores, and foodservice facilities located within entertainment venues (e.g., movie theatres), to the extent they sell restaurant-type food and have 20 or more locations.
Once an establishment is covered, it must provide calorie labeling for “standard menu items,” defined as restaurant-type foods that are routinely included on a menu or menu board, or routinely offered as a self-service food or food on display. Self-service food is restaurant-type food available at a salad bar, buffet line, cafeteria line or similar self-service facility and that is served by the customers themselves, including self-service beverages.
Food on display is restaurant-type food that is visible to the customer before ordering, so long as there is no expectation of further preparation by the customer before consumption. Food on display can either be displayed for consumers to select from a case, or can be displayed behind a glass counter, such as slices of pizza displayed behind the counter.
Excluded from the new requirements are custom orders, daily specials and condiments available for general use. Also excluded are temporary menu items that appear on the menu or menu board for less than 60 days per calendar year, or food that is part of a market test and offered for less than 90 consecutive days. FDA also explains that certain foods offered in grocery stores that are ready for immediate consumption may not be restaurant-type foods if they are usually stored for use at a later time or further prepared by the customer. Examples include loaves of bread, whole cakes, and deli meats and cheese.
Specific Requirements
The rule sets forth basic requirements to (1) declare the number of calories in each standard menu item; (2) post statements on the menu and menu board that read “Additional nutrition information available upon request” and “2,000 calories a day is used for general nutrition advice, but calorie needs vary;” and (3) provide additional nutrition information to customers upon request (including calories, calories from fat, total fat, saturated fat, trans fat, cholesterol, sodium, total carbohydrate, dietary fiber, sugars, and protein.
There are fairly detailed prominence and placement rules for each of the three basic requirements. The new rules will inevitably affect the layout and “look” of menus and menu boards.
Requirements for calorie declarations will vary depending on the type of food. For example, there are different requirements for combination meals, which are typically declared using a range that captures the lowest and highest possible calorie totals; as compared to fixed, standard menu items, which are declared as a single value for the item as it is usually prepared and offered for sale. There also are specific requirements for multiple-serve items, variable menu items (including those with added toppings like pizza or ice cream), packaged foods, self-service food and food on display, and beverages.
Compliance Standard
FDA requires each establishment to have a “reasonable basis” for the calorie and other nutrient values (e.g., drawn from a nutrient database, cookbook, laboratory analysis, or “other reasonable means”). This is the standard that has traditionally been applied to nutrient declarations for restaurant foods since 1993. An establishment must take “reasonable steps” to ensure that the method of preparation (e.g., types and amounts of ingredients, cooking temperature) and amount of the standard menu item offered for sale adhere to the factors on which its nutrient values were determined.
Food processors can be a source of information for the reasonable basis, by providing information such as types and amounts of ingredients, cooking instructions, lab analyses, or complete nutrition information. Accordingly, there will likely be an increase in requests of food processors for nutrition information.
Additionally, a responsible individual must certify that the information relied upon is complete and accurate and that the reasonable steps described above are taken. Documentation verifying calorie values must be made available to FDA upon request. The regulations specify the types of documentation needed, depending on the basis for the nutrient declarations.
Vending Machine Labeling
The vending machine rule applies to businesses that own or operate 20 or more vending machines that sell food. The rules provide some flexibility as to how the calories can be declared, as the information can appear either on the food label itself or on or adjacent to the vending machine. If the labeling is done via the packaged food label, it must be visible to the prospective purchaser, in a type size at least 50% of the largest printed matter on the label. There likely will be some discussion—involving the vending machine industry and packaged food and drink manufacturers—about whether labeling goes on the products or on/adjacent to the vending machines.
Food Processing Implications
Although food processors are not directly subject to either rule, they will impacted by requests from restaurants and other food retail customers for additional information. Again, this information will be needed to establish the reasonable basis for nutrition declarations, and to document that reasonable basis.
The menu labeling rule becomes effective December 1, 2015; while the vending machine rules take effect December 1, 2016.
