Controversial Menu-Labeling Rule is Now Law for Restaurants

May 7 marked the official start date for the oft-delayed menu-labeling laws. It took nearly a decade, but at last restaurants and other away-from-home food retailers are being required by federal obligation to include calorie counts on menus and signage. The rule applies to “any restaurant or retailer serving food for away-from-home consumption with more than 20 locations “doing business under the same name … and offering for sale substantially the same menu items” will be required to label their menus and signage with calorie counts, says the FDA website.

Operators must also provide additional nutritional information to customers upon requests. Check out the entire menu labeling guidance here.

The National Restaurant Association lauded the move.

“This is a welcome development for both the restaurant industry and consumers, and we are pleased that our efforts to preserve the May 7 compliance date were successful,” said Cicely Simpson, executive vice president at the National Restaurant Association, in a statement. “By setting a clear standard, this rule provides the necessary guidance and expectations for America’s restaurants to follow in order to continue delivering a high quality experience and customer service to everyone who walks through our doors, as well as the transparency our customers demand. We applaud Food and Drug Administration Commissioner Scott Gottlieb and the Trump Administration for working with the National Restaurant Association to push this policy across the finish line.”

The rules were originally set to take hold in 2015. In May 2017, President Donald Trump’s FDA announced that the compliance date was being extended from May 5 to May 7, 2018. “We are taking this action to enable us to consider how we might further reduce the regulatory burden or increase flexibility while continuing to achieve our regulatory objectives, in keeping with the Administration’s policies,” the FDA said in a statement at the time.

The ObamaCare rule was initially issued in December 2014 and moved back twice under former President Barack Obama’s administration. It was first proposed as a federal labeling requirement by the NRA and other chains in 2008

How the FDA will monitor these rules is still to be determined. What they do achieve, however, is uniformity that was lacking before—and confusing to operators. In one example, New York City hit the breaks in August after reaching an agreement with the FDA regarding the impending enforcement of the controversial menu-labeling law. New York City agreed to delay its rollout of the rules until a federal regulation from the FDA is completed.

The city originally said it would enforce the rules against retailers and restaurants starting August 21, well ahead of the FDA’s planned May 2018 compliance date. The FDA filed court papers in New York City to support action sought by the Food Marketing Institute, the National Restaurant Association, National Association of Convenience Stores, and the New York Association of Convenience Stores.

Concepts that don’t fall into the traditional service format, like buffets and delis, have different rules to follow.

Here is a rundown of what the rules entail:

Restaurant and retail chains will be required to list calorie counts for individual foods and beverages as well as combo meals next to the name or price of the item. Where self-service foods are offered, such as at salad bars and buffets, calories must be shown on signs near foods.

Restaurants must also post that more complete nutrition information is available upon request. This information must cover:

Total calories
Calories from fat
Total fat
Saturated fat
Trans fat
Cholesterol
Sodium
Total carbohydrates
Fiber
Sugars
Protein
Nutritional facts must also be substantiated in labs to prove that they are accurate.

Menus and menuboards must also provide context by stating that it is recommended that adults consume 2,000 calories a day, but that individual calorie needs vary, says the FDA’s website. For restaurants that serve children, the following statement is acceptable: “1,200 to 1,400 calories a day is used for general nutrition advice for children ages 4 to 8 years and 1,400 to 2,000 calories a day for children ages 9 to 13 years, but calorie needs vary.”

Who Must Follow the Rule?

Any restaurant or retailer serving food for away-from-home consumption with more than 20 locations “doing business under the same name … and offering for sale substantially the same menu items” will be required to label their menus and signage with calorie counts, says the FDA website. This includes franchises that operate with the same name as other franchises or parent companies.

The rule also applies to most categories of foodservice:
Items served at full-service and quick-service restaurants, bakeries, and coffee shops, including foods from drive-thru windows
Items available for delivery or take-out
Self-serve options, including buffets and salad bars
Alcoholic beverages that are listed on menus
Foods served in entertainment venues, such as movie theaters and stadiums
Certain grocery and convenience store items

In addition, when multiple varieties of foods or meals are available, the calories for each variety must be listed. If more than two choices are available, calories must be represented as a range, such as 150-300 calories. Combo meals with multiple choices will also have to label calorie counts for two items as above or as a range when there are three or more options.

Are There Exceptions to What Must be Posted?

Only items that are regularly available are covered under the rule, so daily specials and limited-time offers are not required to be listed if they are available for fewer than 90 days. Condiments are also not required to have calorie counts listed, nor are custom orders.

In addition, foods sold in some segments do not have to be labeled: