As part of the Patient Protection and Affordable Care Act (commonly known as “Obama Care”), beginning December 1, 2016, restaurants, chain stores and even vending machines will be required by law to make calorie information of their products available prior to purchase.

The new regulations impact restaurants and similar retail food establishments, including bakeries, cafeterias, coffee shops, convenience stores, foodservice vendors (such as ice cream shops and mall cookie counters), food takeout and/or delivery establishments, grocery stores, retail confectionary stores, superstores, quick-serve restaurants and full-service restaurants.

The regulations also apply to entertainment venues, such as amusement parks, bowling alleys and movie theaters. Any chain with 20 or more facilities is covered by this regulation. Licensees using the same name are counted as the same company and will be required to comply if they have more than 20 physical locations.

The regulation states that the foods covered include restaurant-style foods, regardless of where they are sold. Restaurant-style foods include sit-down or quick-serve restaurants, drive-through establishments, takeout and delivery food purveyors, hot foods at grocery stores or convenience stores, buffet foods (including hot buffets and salad bars), foods ordered from a menu board at a grocery store intended for individual consumption and self-serve foods intended for individual consumption. The latter includes items such as sandwiches; wraps or paninis at a deli counter; plated salads at a salad bar; and bagels, donuts or rolls offered for individual sales.

Foods exempt from calorie labeling include foods bought from bulk bins (such as dried fruit and nuts, granola and other bulk items); foods intended to be eaten over several eating occasions (such as loaves of bread, whole cakes or boxes of candy or cookies); foods prepared by the consumer prior to serving (for example, deli meats and cheeses); and foods sold by weight, such as deli salads (either prepared upon request or prepackaged).

Companies having fewer than 20 establishments may choose to voluntarily comply with these regulations but are exempt from mandatory requirement. To voluntarily comply, such venues will need to register with the FDA, which may be done through the FDA website (www.fda.gov). The information needed to register is the company name (including all names the company operates under), address and contact information with phone number and email address for the person responsible for the registration.

Calories

Calories will be required on the menu for all standard menu items. Standard menu items are defined to be any item as it is served per the menu. For example, if a hamburger comes with ketchup, mustard, pickles and onion, those must be included in the nutrition information. If the customer requests tomatoes be added and onion removed, that is not a standard menu item and the calories listed on the menu would not reflect those changes. Limited-time offerings—such as specials that are available for fewer than 90 consecutive days—will be exempt from these regulations. Multi-serve items intended to serve more than one person (for example, pizzas) are to contain the calorie count for the entire menu item.

The calorie listing must be located next to the menu description or the price, and in the same size type as the name or the price, whichever is smaller. The information also must be at least as contrasting as the price for the associated menu item. The information must be preceded by “Calories” or “Cal” on the menu or menu board. Calories shall be rounded to the nearest five (5) calories from 0 to 50, and to the nearest 10 calories above 50 calories.

For menu items where different varies are available the calories for each variety shall be labeled.

An example would be a variety of beverages where each beverage flavor and size has a different calorie count. If there are two different sizes of a product, the calories may be listed for each option and separated by a slash. For example, a medium and large beverage could have the calories listed as 150/250 calories. If the product is offered in three or more sizes or varieties, then a range is allowed.

Here’s another example. If a salad, baked potato or French fries are possible side dishes, then the calories may be listed as “600-1200 calories.” There also will be an option to list calories per each ingredient or component of the meal. For example, a basic cheese pizza may be listed, followed by separate listings for each potential topping and its serving.

For a buffet or other format where the items offered may change regularly, it is acceptable to include a notice with the wording, “See buffet for calorie declarations” on the menu or menu board. The calories are then declared next to each food item in a size no smaller than the price of the food with a color as conspicuous as the name or price. When this calorie method is used, a serving size must be provided with the calorie information provided in discrete units.

The FDA concluded that calorie labeling for self-serve beverages should not include any ice. If the amount of ice is standardized, and added by company employees, then ice may be included when the calories for a beverage is calculated and labeled.

At the bottom of the menu or menu board, the FDA is requiring the statement “2000 calories per day is used for general nutrition advice, but calorie needs vary.” If the menu is targeted at children ages 4 to 13, the following statement should be included at the bottom of the menu: “1200 to 1800 calories per day is used for general nutrition advice for children aged 4 to 8 years, and 1400 to 2000 calories a day for children aged 9 to 13 years, but calorie needs vary.”

These statements must be in the same size as the smallest type size of any calorie declaration, and must be in a color at least as conspicuous as that used for the calorie declarations.

Additional Information

Establishments that are required to provide calorie labeling also are required to provide additional nutritional information upon request. This information may be provided in written or electronic form. If it appears in electronic form, the establishment must have a way to share this information upon request at the establishment. If the additional nutrition information is only located on the company’s website, a restaurant must provide an electronic device with internet access that can be brought to the customer’s table when the information is requested.

In order to alert customers to additional nutrition information available, the statement “Additional nutritional information available upon request” must appear. This statement must be located in a clear and conspicuous manner. On menus, the statement should appear at the bottom of the first page. For menu boards and other types of menu labeling, it is required to appear in a clear and conspicuous location. The statement must be at least as large as the other calorie information. The color must be as least as prominent as the other print on the menu.

The additional information must include total calories, calories from fat, total fat, saturated fat, trans fat, cholesterol, sodium, total carbohydrates, dietary fiber, sugar and protein. This may be put in a nutrition facts panel or table that is easy to read and understand. If the restaurant choses to use a format like the simplified nutrition facts panel, where all nutrients are not listed, that is allowed as long as the statement “not a significant source of ___” is included below the information provided for those nutrient not listed.

Rounding for this information follows the same rules as in the nutrition facts panel.

Compliance

There are two ways to demonstrate compliance with these regulations. The first method allowed is to use a nutrient database. Nutrient information from supplier, the formula or recipe information and a print out of the nutrition information from the database should be included in a packet made available for FDA review.

The second method for demonstrating compliance is to conduct nutrition testing. Information regarding the lab, what testing methods were used and the results all should be provided by the lab, and include confirmation in the form of a signature that the information is correct to the best of the company’s knowledge. This information should be attached to a copy of the recipe or formula that was tested and retained for FDA review. Record keeping is required as part of this regulation.

Rule 21CFR101.9 states that, although nutrition information is only required on foodservice labels that have nutrition claims, all manufacturers are required to provide nutrition information upon request. This can be done via a spec sheet or other methods.

Food companies should expect the number of requests for nutrition information to increase. There may be additional request to verify the nutrition information that is provided. Food companies also should be prepared for these requests and to provide the information needed in a timely manner.

This regulation does not include the same requirements for tested values being between 80% and 120% of the value declared that is required for retail food labels. FDA will most likely wait before it starts reviewing menu labels for compliance. However, it is unlikely the media will be so generous.

The food industry commonly finds its foods being tested for nutrition compliance by the media. Media outlets often expose even the smallest differences from the label information. Foodservice establishments should prepare for these news stories and develop a policy for responding to any potential stories about calorie disparities.

Of course, this also applies to cases involving prepared foods and food manufacturers who supply accompanying nutritional information. These supplier-manufacturers likewise can help foodservice operators prepare for media scrutiny.
 

School Rules: Nutrition Update

Changes continue to impact school lunch labeling and its related programs.  The United Stated Department of Agriculture Food and Nutrition Service (FNS) continues to provide updates regarding compliance with 2012 school lunch changes.

It has been three years since new school lunch regulations were implemented. FNS believes that 95% of schools are now compliant with the new regulations. Federal officials also have initiated several programs to assist the remaining 5% of schools with regulatory compliance.  These programs include regional training sessions, peer-to-peer mentoring programs and tailored technical assistance as needed.  As FNS works toward 100% compliance with current regulations, it’s clear that food manufacturers are developing new products that meet school lunch requirements and that are widely accepted by school students. 

In February, 2014, the USDA issued a proposed rule that would require local school districts to implement wellness programs in order to continue to receive school lunch funding.  These programs would require a committee—including school officials, parents and community members—to develop a comprehensive “wellness” plan.  The plan should cover nutrition promotion and education, physical activity and other school-based activities.

Examples of nutrition promotion and education include speakers about community gardens, fruit and vegetable tastings, or posters that promote nutrition.  Sixty minutes of physical activity is recommended each day.  The physical activity portion of the wellness program should include ways to help students get more physical activity each day. Other school-based activities can include information that extends beyond the students who participate in school lunch program.  This can include an exercise program for teachers, parent nutrition education, or information on alcohol and tobacco use.  It is unknown when the final rule will be issued or when implementation will be required.

FNS also provides funding for food programs involving pre-school children and/or adult care.  A proposed rule regarding Child and Adult Care Food Programs was issued in January 2015. Changes to the child feeding care program were limited due to the cost restraints that these programs face.  The biggest change to this program was the requirement that items will no longer be allowed to be refried on site before being served.

Foods such as chicken nuggets and French fries can still be fried by the food manufacturer but must be baked to reheat before serving.  In contrast to the school lunch program, this program will continue to allow foods to be served “family style” and will not establish limits on calories, saturated fat or sodium. 

With the 2016 presidential election in full swing and Michelle Obama’s limited time in the White House, it seems likely that school nutrition changes will slow down.  This will give schools and the food industry more time to catch up with the previous rules and work toward finding foods that are both nutrition and well received by school students.