President Barack Obama signed the Patient Protection and Affordable Care Act into law March 23, 2010. One section of the bill – Section 4205 – requires restaurants with 20 or more locations nationally to add calorie counts to menus, menu boards and drive-thru menu boards for standard menu items. It also requires covered restaurants to make additional nutrition data available to guests on request. The law also establishes requirements for chain vending machine operators.
July 5, 2011 update:
National Restaurant Association Files Menu Labeling Comments
- from National Restaurant Association
The National Restaurant Association today is filing comments regarding the Food and Drug Administration’s (FDA) draft menu labeling regulations. The Association was a primary advocate for the menu labeling law, passed in March 2010, which will require restaurant chains with 20 or more locations operating under the same brand to provide detailed nutrition information to consumers, and display calories on the menu, menu board, or drive-thru.
“Given the complexity of the restaurant industry and the many different types of concepts ranging from quickservice to fine dining, we appreciate the FDA’s efforts to draft these regulations,” said Dawn Sweeney, President and CEO of the National Restaurant Association. “In our comments, we have outlined some of the ways we believe the regulations can be improved and strengthened, to better allow restaurants and foodservice outlets to most effectively display nutrition information to consumers.”
Some highlights of the comments include:
- Flexibility with Nutrition Disclosure. As written, the law requires nutrition information to be provided in a clear and conspicuous manner. The diversity and complexity of the restaurant industry make providing nutrition information to consumers far more complicated than it may seem on the surface. Greater flexibility is needed in order for operators to present information in a format and manner that works for their operation and customer.
- Similar Retail Food Establishments. The Association feels strongly that the FDA should treat “similar retail food establishments” with restaurant-like operations the same under the law. “It is critically important to our membership that the final rule implementing nutrition disclosure reflects the intent of Congress and the shared goal of the Association, as well as the approximately 70 public and private organizations and consumer advocate groups that supported the passage of the nutrition disclosure law,” said Sweeney.
- Reasonable Basis Standard. The Association calls for the FDA to follow congressional intent, captured by statute, that restaurant operators use the “reasonable basis” standard. The reasonable basis standard has been recognized by the FDA for twenty years in determining nutrition calculations required by the law, rather than a standard used for packaged foods produced in a food processing facility.
- One Year Implementation Timeframe. Rather than a six month timeline which the FDA proposed, the Association believes that given the challenges and costs associated with creating new menus and menu boards, a one year implementation period will help restaurants more effectively absorb the additional burden (with many of the franchisees impacted being small business owners).
“We encourage the FDA to incorporate our suggested changes in determining the final regulations,” said Sweeney. “We want to make it easy for restaurants to share nutrition information with consumers.”
Under the law supported by the Association, nutrition information and calories on the menu and menu board will be available in more than 250,000 restaurant locations nationwide.
Read the Association's complete comments.
Dawn Sweeney, President and CEO of the National Restaurant Association, also wrote to FDA Commissioner Margaret Hamburg to stress that menu-labeling rules must be workable for independent restaurants to participate in a voluntary program.
April 2, 2011 update:
FDA issues menu-labeling guidance
Saturday, April 2, 2011
- from National Restaurant Association and Food and Drug Administration
The U.S. Food and Drug Administration published on April 1 its much-anticipated proposed menu-labeling regulations for chain restaurants.
The FDA had missed an initial deadline of March 23 — one year after President Obama signed the provision into law as part of the Patient Protection and Affordable Care Act of 2010. The agency attributed the delay to the complexity of the issue.
The industry and general public will have 60 days to comment. The FDA is expected to publish its final regulations by the end of this year, and enforcement could begin as early as summer of 2012.
The proposed regulations can be found as a 183-page document at http://www.accessdata.fda.gov/scripts/oc/ohrms/advdisplay.cfm
Among the key regulations addressed in an overview issued by the FDA are the following:
Establishments covered:
> Restaurants or similar retail food establishments with 20 or more locations, conducting business under the same name and offering for sale basically the same menu selections are covered under the rules.
Businesses whose main purpose is not to sell food — such as movie theaters, airplanes and bowling alleys — wouldn’t be subject to these rules, the FDA said.
A “restaurant or similar food establishment” is defined as an operation whose main business is selling restaurant food or restaurant-type food to consumers. An establishment's primary business activity would be the sale of food to consumers if it presents itself as a restaurant, or if more than 50 percent of its total floor space is used for the sale of food, according to the FDA. Examples of these establishments include fast food establishments, bakeries, coffee shops and certain grocery and convenience stores.
Display of calorie counts: Calories would be posted on all menus and menu boards, including those at drive-thru locations. The term “Calories” or “Cal” must be posted clearly and prominently on menus and menu boards adjacent to the number of calories. Calories for variable menu items, such as combo meals consisting of a choice of sandwich, side dish and beverage — would be displayed in ranges.
For foods on display, calories would be listed per item or per serving on a sign adjacent to the food.
For self-service foods, such as a salad bar, calories also would be listed per serving or per item on a sign next to the food.
> Vending machines: Under the proposed rules, operators who own or operate 20 or more vending machines would post calorie information for food sold in a vending machine, unless certain nutrition information is already visible on individual packages of food inside the machine.
Read more.
August, 2010 information
On August 24, 2010, the Food and Drug Administration released guidance on the new federal nutrition-disclosure law. The following documents are available on the FDA's website.
- Draft guidance on the menu-labeling process for covered restaurants
- Preemption explanation, which provides an overview of how the federal law preempts non-identical state and local menu and vending machine labeling laws and regulations
The FDA indicated that while some of the law's requirements have taken effect, the agency will not take enforcement action until after the public has had time to comment on the guidance. The FDA also pledged to provide additional information about how to comply with the law.
FDA officials noted that as of March 23, 2010 -- the day the law was enacted -- federal law preempts state and local menu-labeling laws for businesses covered by the federal law.
The National Restaurant Association has compiled a Q&A sheet regarding the new law, to help foodservice
businesses understand their obligations under the new law.