Update: April 26, 2017
A federal mandate requiring calories be posted on menus for restaurants and grocery stores was to take effect May 5, 2017.   On April 25, 2017, the U.S. Food and Drug Administration postponed its implementation to allow for public comment on the rule.  If you have questions about how this delay may impact your business, please contact your attorney, or any member of the Hospitality Group of Bose McKinney & Evans LLP.  Below is an article published earlier in 2017 about the anticipated rules.

Original Publication Date: January 6, 2017

Food Menu Labeling Requirements Are In Effect. Enforcement Expected May 2017
The new FDA food menu labeling rules, which were originally to be effective as of December 1, 2015, are now in effect as of December 1, 2016. While the FDA has stated it will not enforce the rules until May 5, 2017, covered establishments should be in compliance.

Covered Establishments
Covered establishments include grocery stores, restaurants, movie theaters and other retail food establishments that:
  • Are part of a chain with 20 or more locations;
  • Do business under the same name (regardless of the type of ownership); and
  • Sell substantially the same menu items.
Other retail food establishments may voluntarily elect to register to be covered under the new regulations, which could allow them to avoid various state and local labeling requirements.

Types of Foods to be Labeled
The new labeling requirements apply to standard menu items. Specifically, the law refers to restaurant-type food that is routinely included on a menu or menu board or routinely offered as self-service food or food on display. Restaurant-type foods are further defined as foods that are intended for immediate consumption, whether eaten at the establishment, while walking or driving away, or soon after arriving at another location.

Items Excluded From Labeling
Daily specials, condiments that are for general use, temporary menu items, custom orders and food that is part of a customary market test are excluded from the labeling requirements.

Application of the Menu Labeling Regulations to Alcoholic Beverages
If alcoholic beverages are standard items listed on a menu or menu board, then they are subject to the labeling requirements. In addition, self-service alcoholic beverages, such as bottles of beer or wine in a cooler of a quick service restaurant, also must comply with the labeling expectations. Alternatively, alcoholic beverages that are on display but are not offered for self-service, such as bottles behind the bar used for mixed drinks, are not covered. Additionally, alcoholic beverages ordered by customers at a bar (and are not on a menu or menu board) are exempt from the menu labeling requirements.

Required Information
Covered establishments will be required to list the information below in any medium (menu, menu board, online menu) from which a customer may make an order for beverage or food.
  • Calorie information for all standard menu items.
  • A statement that says: “2,000 calories a day is used for general nutrition advice, but calorie needs vary.”
  • A statement that says: “Additional nutrition information available upon request.”
The new FDA rules even encompass formatting requirements for each of these disclosures. The driving factor is for the information to be noticed, read and understood by average customers. Therefore, the information is to be conspicuously displayed using a color, font size and contrasting background that will attract attention to the data.
Covered establishments also must make detailed nutrition information for standard menu items available upon customer request. These items must include the amount of:
  • calories
  • fat
  • protein
  • sodium
  • sugars
  • cholesterol
  • total carbohydrates and
  • other nutrients
In addition, covered establishments must:
  • Use information from reputable nutrition databases, laboratory analysis or Nutrition Facts labels on packaged foods to establish a reasonable basis for their nutrient declarations;
  • Establish processes to ensure that the method of preparation and serving size of a standard menu item adhere to the factors on which its nutrient values were determined; and
  • Make records substantiating those values available to the FDA within a reasonable period of time upon request.

For more information, contact any member of the Hospitality Group of Bose McKinney & Evans LLP.