Eye on Hospitality: Federal Menu Labeling Compliance Date Moved to May 7, 2018

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By Paul Schlienz

The big May 5, 2017, deadline for complying with the U.S. Food and Drug Administration’s new menu labeling rules has been extended – for a full year to May 7, 2018.

The history behind these rules, required by the Affordable Care Act, is complicated.

In December 2014, the FDA released its menu-labeling regulations. While restaurants were initially expected to comply with these rules on Dec. 1, 2015, the FDA delayed the compliance date by one year to Dec. 1, 2016, due to pressure from Congress. Then, in November 2016, the FDA’s menu-labeling compliance date was moved to May 5, 2017 – the date the rule was to have been enforced before today’s announcement.

“This has been a particularly long battle for all of us and all of you who have been close to this issue for the past eight years,” the National Restaurant Association stated in an email shortly after the announcement that menu labeling compliance would be extended for a year. “There are many strategic questions that lie ahead and clarity that we yet need to obtain. We will continue to strongly advocate for what is our best for our industry in the days and weeks ahead, and we will continue to keep you updated and informed.”

Since the initial delay, the FDA has provided guidance to restaurants on how it will enforce these rules when they eventually take effect. The agency’s emphasis is on informing the foodservice industry on how the rules will ultimately work, and getting restaurants up to speed on what will be required of them.

“We’re focused on education,” Lynn Szybist, leader of the FDA’s Labeling Regulations Implementation Team, said at a 2016 webinar.

“We have long-advocated for a nationwide federal menu labeling standard that gives customers access to uniform nutritional information at restaurants, that provides certainty to restaurateurs and food service operators over the patchwork of state and local laws,” said National Restaurant Association in a 2016 statement.

While the expected cost throughout the restaurant industry is somewhere around $315 million to implement in the first year, the final rules are a win for restaurants. The FDA took restaurants’ concerns into account while drafting the rules. As a result, the rules federally preempt any state or local menu-labeling regulations, replacing a confusing array of rules.

“The piecemeal approach to menu labeling that we were seeing across the country was creating havoc for restaurants and their customers,” said Cicely Simpson, the National Restaurant Association executive vice president of government affairs and policy. “So, the industry went to Congress to create a federal standard that would provide uniformity for restaurants to comply while getting important legal protections for posting nutrition information.”

Other wins for restaurants are the inclusion of convenience and grocery stores among “similar retail food establishments” in the rules, and flexibility on implementation, including allowing pizzas to be labeled by the slice.

Know the Rules

Even though restaurant operators are receiving an extension on the deadline, they still need to know the rules and get in compliance. To ensure compliance, restaurant operators need to consult the actual regulations as published by the FDA.

In general, the rule covers restaurants and similar retail food establishments if they operate 20 or more locations under the same name with substantially the same menu items at its locations. Smaller restaurants may comply with the rules if they choose, but this on a strictly voluntary basis.

If you are affected by the rules, starting on May 7, 2018, you must clearly and prominently display calories on menus, menu boards and drive-thru displays for standard menu items. On buffet, cafeteria and self-service lines, calorie information must be displayed on signs near the menu items. You may use the term “calories” or “Cal” as a column heading or adjacent to the number of calories for each standard menu item.

All non-alcoholic beverages and any alcoholic drinks that are on a drink menu are covered under the new rules. The regulations do not affect mixed drinks requested by customers at a bar.

Additionally, daily specials, custom menu orders, general-use condiments, test-market items and certain other temporary and seasonal items are not included in the regulations.

The law will also require restaurants to have a “reasonable basis” to substantiate their nutrition data. Such “reasonable” sources of information may include nutrient databases, Nutrition Facts labels, laboratory analysis and other means.

Upon request, other nutrition information, including data on calories from fat, total fat, saturated fat, trans fat, cholesterol, dietary fiber, sodium, sugars, protein and total carbohydrates, must be made available in writing. You must also include a menu notice advising customers that further written nutrition data is available on request for your standard menu items. This information may be posted on a counter card, sign, poster, handout, booklet, loose leaf binder, electronic device or in a menu. Additionally, you must include a succinct statement on the menu advising guests how calories fit into a recommended daily diet. (Example: “2000 calories is used for general nutrition advice, but calorie needs vary.”)

For more information, visit the National Restaurant Association’s Menu Labeling page. Additionally, the FDA provides a comprehensive overview of the new rules. If you are unsure of how to determine calories and other nutritional values, email your questions to CalorieLabeling@fda.hhs.gov.


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