Getting Ready for Menu Labeling Rules

JERSEY CITY, N.J. — When the Food and Drug Administration (FDA) handed down its final rules on menu labeling at chain restaurants, grocery/convenience stores and vending machines, everyone knew it would have a big impact — but how big? The Food Institute explored that question Thursday in a webinar entitled "The Real Cost Of Menu Labels for Supermarkets & Restaurants."

"'Menu labeling' is something of a misnomer because it reaches far beyond restaurants and restaurant menus," said webinar presenter Robert Hahn of OFL Law.

To understand how they should respond to the rules, retailers must understand who is affected — and it isn't only restaurateurs. Covered businesses include any 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 ownership; and offering substantially the same menu items.

Retailers who don't run restaurants must determine whether they serve restaurant-style food. According to the FDA, this is food that is served for immediate consumption or processed/prepared primarily in a retail establishment and usually eaten on premises, while walking away or soon after arriving at another location.

"This is a very broad definition," Hahn said.

Additionally, it isn't necessary for a chain's menus to be identical to fall under the rules. Businesses must only offer for sale "substantially" the same items, and the FDA has stated that it is not going to set a specific percentage of menu items that must be the same to qualify. Hahn advises borderline cases to follow the rules just to be safe.

Exempt foods include condiments offered for daily use, custom orders, temporary menu items available for less than 60 days in a calendar year, and food that is part of a customary market test for less than 90 days.

Once retailers have determined that they must follow the menu-labeling regulations, they must include the following information for each standard menu item:

• Calorie declaration
• The succinct statement (ex. "2,000 calories a day is used for general nutrition advice, but calorie needs vary")
• The statement of availability (ex. "Additional nutrition information available upon request")
• Additional written nutrition information

Not all signage counts as a menu board. Signs behind the counter, table tents and website menus generally qualify, while storefront posters, billboards and mailings, coupons and circular advertisements generally do not. Covered establishments are not required to have menu boards — but if they do, they must follow the labeling requirements.

The actual calorie declarations on the menu must appear by the name or price of the menu item in a type size no smaller than the name or price (whichever is smaller) and in the same color (or a color at least as conspicuous) as the name of the menu item. The background must also be the same or at least as contrasting.

In the case of menu items where the calorie information is more difficult to determine, such as a pizza or combo meals, retailers can list the calories by piece or list a calorie range.

Retailers have until Dec. 1 to comply with the FDA's rules, but accuracy of information, signage and recordkeeping can take a considerable amount of time to get right. As a result, compliance is "on a short fuse," Hahn said.