As reported in April 2017, the U.S. Food and Drug Administration (FDA) postponed its implementation of a federal mandate requiring calories of food and alcoholic beverages to be posted on standard menus for certain restaurants and grocery stores, allowing time for public comment on the rule. In November 2017, the FDA released draft guidance. The FDA Constituent Update (November 7, 2017) has an overview of the guidance with a sample graphic. The majority of the text from the FDA Constituent Update also is included below.
Of particular interest is the treatment of alcohol, especially beer.  The draft (no pun intended) guidance addresses labeling requirements for menu, menu board, draft beers, and seasonal items.  For example, and good news to many, draft beers that are not on the menu or menu board and are served by a bartender are “foods on display” and do not require calorie and other nutrition labeling.
For more information, contact any member of the Hospitality Group of Bose McKinney & Evans LLP.
The U.S. Food and Drug Administration released the draft guidance Menu Labeling: Supplemental Guidance for Industry. It addresses comments the agency received on the May 2017 interim final rule (IFR) extending the compliance date for the Menu Labeling Final Rule from May 5, 2017, to May 7, 2018. The FDA has been working hard to address industry and other concerns through the least burdensome route and believe that is through guidance.
The question-and-answer style draft guidance features approximately 20 different graphics to illustrate the agency’s new and expanded interpretations of the menu labeling provisions and practical ways for industry to comply with these provisions. It addresses concerns some stakeholders have raised including: calorie disclosure for self-service foods, such as buffets and grab-and-go foods; accounting for the natural variation of foods; compliance and enforcement of the rule; criteria for covered establishments; determining standard menu items; criteria for distinguishing between menus and other information presented to the consumer, like marketing materials; various methods for providing calorie disclosure information on foods such as pizza.
The Menu Labeling Final Rule, when applied to marketing materials, is intended to be flexible and not prescriptive. As an example, the draft guidance explains that marketing materials (e.g., pizza coupons, posters in store windows, signs on gas pumps, or paper inserts) generally would not be considered a menu or menu board and would not require calorie declarations. The agency is withdrawing two questions from the previous Menu Labeling Guidance that pertained to marketing materials. When finalized, this guidance will provide clarity on the FDA’s flexible approach to distinguishing between a menu/menu board and marketing materials.
The agency will accept comments on this draft guidance from November 9, 2017 to January 8, 2018, after which it will move to finalize it to ensure industry has adequate time to implement the requirements. Consumers can expect to see menu labeling in covered establishments nationwide by May 7, 2018.