Is Your Restaurant Ready for the FDA's Menu Labeling Rules?


The coming national standard for nutritional information

The coming national standard for nutritional information

It’s time to watch America’s waistline: menu labeling rules are coming at a fast and furious pace. Final rules regarding the Food and Drug Administration’s (FDA’s) proposed menu labeling are expected to be released later this year. Once enacted, the new measure will ostensibly create a national standard for menu labeling, requiring restaurants with 20 or more locations to display caloric and nutritional information (such as fat and sodium content) for standard menu items, as well as for food served in buffets and salad bars. By creating this national standard, consumers throughout the country will be exposed to nutritional information in at least 200,000 restaurants, including hotel chains.

Creating Public Consciousness Regarding Calories and Nutrition

The movement toward a national nutritional standard gained momentum as the public and various state and local governments grew increasingly concerned with the country’s obesity epidemic. While Americans consume about one-third of their calories (and half of their food budgets) at restaurants and fast-food outlets, few have an accurate understanding of the nutritional content of the foods served at these establishments. For instance, coffee drinks can range from 5 to 800 calories while hamburgers may contain as few as 250 calories or as many as 1275. A 2009 study by California’s Field Research Corporation revealed that only 10 percent of Californians could pick the healthiest item from a short list of common fast foods. That same poll indicated that 84 percent of Californians supported the concept of posting nutritional information in chain restaurants.

As public health advocates lobbied government officials to address staggering obesity statistics with remedial action, California led the charge, passing the nation’s first menu labeling bill in 2009. Under SB 1420, any restaurant with 20 or more locations in the state is currently required to provide brochures containing nutritional information at the point of sale from both the walk-up counter and drive-thru window. Beginning on January 1, 2011, restaurants were required to post calorie information on menus and indoor menu boards.

With the success of the California menu labeling law, other states and localities followed suit and passed similar measures. Soon thereafter, the federal government enacted the first federally mandated menu-labeling legislation. Section 4205 of the Patient Protection and Affordable Care Act was signed into law on March 23, 2010, requiring nutrition labeling of "standard" menu items for chain restaurants with 20 or more locations. The labeling would also be required for “retail food establishments” whose primary business is the sale of food to consumers—if the establishment presents (or has presented) itself publicly as a restaurant and more than 50 percent of its total floor area is used for the sale of food.

Members of the hospitality industry, initially skeptical of a uniform nutritional standard, have lauded the passage of this legislation. Fearing that conflicting local and state laws could lead to significant litigation, the federal bill was endorsed by all major hospitality organizations. By providing regulatory certainty to covered restaurants, this national solution will not only protect chain restaurants, but also give consumers the ability to make informed decisions when dining out.

Contents of the Bill

Specifically, the new regulations will require restaurants with 20 or more locations to post caloric and other information: (1) in a clear and concise manner, (2) adjacent to the name of the standard menu item, (3) clearly associated with the standard menu item, and (4) of the number of calories contained in the standard menu items as usually prepared and offered for sale. It also requires these restaurants to make additional nutrition data available to guests upon request.

The bill even addresses what constitutes an updated “serving size” to reflect “how people eat and drink today, which has changed since serving sizes were first established 20 years ago.”

The FDA may add further requirements regarding the posting of information on certain nutrients if it deems they are necessary for maintaining a healthy consumer diet. Items not listed on the menu, such as condiments, daily specials that are on the menu for less than 60 days per calendar year, custom orders, and food that is part of a customary marketing test for a period of less than 90 days, are exempt from the nutritional disclosure requirement. Alcoholic beverages, which are exclusively regulated by the Alcohol and Tobacco Tax and Trade Bureau, will also not be covered by the law.

How You Can Prepare for the New FDA Rules

Certain hotel chains, such as Marriott International Inc.’s Courtyard by Marriott, were proactive in rolling out caloric information. Courtyard by Marriott, which operates a chain of bistros that offer prepared foods and made-to-order items, tested its own calorie initiative at several of its Seattle locations in 2009. Printing calorie counts on the large display menus between the name of the item and its price, Courtyard discovered that its sales were not impacted and guest feedback was positive.

The FDA commissioner anticipates that restaurants and hotel chains will have one year to comply once final regulations are released. Restaurants will be best prepared if they ensure that all recipes match the labels on their menus and should seek expert analysis in order to obtain accurate nutritional information. Updating nutritional information as recipes (and menu labels) change is imperative.

Training is a necessary element to implementing the new regulations, and failure to adequately train one’s employees can lead to increased customer complaints, compliance issues, and potentially even civil liability for misrepresentation and/or unfair business practices. This means focusing back-of-house employees on paying close attention to recipes and portion sizes, to ensure that the prepared food is actually as described in the menu. In instances where menus change regularly, it is necessary to repeat training efforts often and monitor the back-of-house employees’ preparation of new offerings. This new requirement also makes it critical that those front-of-house employees are able to answer guests’ questions with respect to the nutritional information of all menu items. Front-of-house employees must know where to obtain the nutritional information upon request and ensure that guests are fully informed. Perhaps the greatest responsibility falls on ownership and management, who must be sure that systematic menu analysis is completed and regularly updated. This includes making certain that pre-packaged goods and beverages obtained from third-party vendors and/or other outside sources also identify the appropriate nutritional information. Of course, if additional time is needed for such training, as will necessarily be the case, employees must be compensated for such time.

By spending a little time on preparation, restaurants can ensure they meet the demands of the new FDA labeling rules and satisfy customers’ hunger for nutritional knowledge.

The opinions of contributors are their own. Publication of their writing does not imply endorsement by FSR magazine or Journalistic Inc.

Jordan Bernstein and Lara Shortz are hospitality attorneys at Michelman & Robinson, LLP, a national law firm with offices in Los Angeles, Orange County, San Francisco, Sacramento, and New York. For more information, please visit

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