Does Your Foodservice Comply With New Menu Labeling Rules?

NATIONAL REPORT — As the compliance deadline for new federal menu labeling regulations fast approaches, there is a great deal that foodservice retailers — convenience stores included — must get done to be ready.

First, retailers must be sure whether or not they are covered under the new requirements, Doug Kantor, partner at Steptoe & Johnson LLP, explained during an April 13 menu labeling webcast presented by NACS, the Association for Convenience & Fuel Retailing. 

If 20 or more locations with the same name sell restaurant-type food, and that food is similar and prepared "substantially the same way" at each location, that convenience store brand must comply with the regulations. Even if the stores are franchises operated by a franchisee who only has one location, they are liable.

Additionally, a facility within a facility such as a Subway franchise inside a c-store must comply with the regulations, even if the store itself would not have to do so.

Restaurant-style food generally means "anything that you expect someone may eat [immediately], as opposed to taking home to family and making a meal," Kantor said. This includes dispensed beverages, roller grill or grab-and-go items, combo meal/hot bar food, bakery doughnuts, and made-to-order items that appear on the menu board.

Packaged food is excluded, as it has its own regulations for labeling with nutritional information. Other food that is excluded from menu labeling requirements include temporary items (less than 60 days), market test items (less than 90 consecutive days, with the test component being key), and condiments. 

Condiments are easy to confuse with toppings, which do fall under the requirements. To determine whether something is a condiment or a topping, retailers should ask themselves if an item is on display/listed on a menu; if it is self-serve and available to everyone who steps inside the store; and if it carries an extra charge.

Ultimately, responsibility for compliance falls on the person with "authority or supervisory responsibility" over the preparations. Kantor advised franchisees to check their franchise contracts.

When it comes to the actual labeling, there are ways to avoid plastering all available space with labels for every possibility. If combination meals have more than two offerings or multiple sizes, the label can include a range rather than a long list of caloric contents. Menu boards themselves are not required; signage can be posted on a hot food holder or soda fountain. But if menu boards do exist, they must include calorie counts.

During the time since the legislation originally passed, more options have been developed for retailers. For instance, both PepsiCo Inc. and The Coca-Cola Co. now offer custom calorie and nutritional reports. Various forms of software also exist for retailers who want to create their own calorie and nutritional information reports, as do third-party companies who can perform such services for retailers. 

The U.S. Food and Drug Administration's enforcement date for the menu labeling requirements is May 5.