May 29, 2018
If you are someone who chooses an item on a restaurant menu based on calorie content, you are in luck. This month, the FDA's "Menu Labeling Rule" requiring calorie counts next to menu items went into effect. FDA Commissioner Scott Gottlieb issued a press release providing an overview of the labeling rule. Commissioner Gottlieb noted that the rule applies to "establishments that are chains with 20 or more locations doing business under the same name that offer substantially the same menu items consisting of restaurant-type foods." In addition to calorie content, consumers may request that the establishment provide additional nutrition information such as the amount of sodium, fiber, sugars, total carbohydrates, saturated fat and protein for any standard menu item. According to the FDA, the rule applies to restaurant menus and takeout foods all across America and thereby provides a uniform standard to replace the patchwork of menu labeling laws around the country. This new framework ensures that consumers "have access to consistent, science-based information."
In a nod to industry, the FDA explained that it wants the new rule "to be minimally burdensome for businesses to effectively comply" with. To that end, the FDA issued a final guidance document "that provides additional clarity and details requested by the food industry on the FDA’s thinking on various topics related to the new regulation." The guidance document includes several pictures reflecting the "flexible approach" FDA is taking with respect to compliance with the rule. It further explains that posters, billboards, coupon mailings and other marketing materials are generally not considered menus that would require calorie counts under the regulation. It also provides illustrations of ways to post calories for multiple items on a single sign, such as at a self-service buffet or beverage station. In response to concerns from pizza chain owners, who noted that there are literally thousands of topping combinations people might want on their pizza, FDA provided several illustrations to provide options for how to comply with the rule.
At least at the outset, FDA intends to work collaboratively with covered establishments: "For the first year, we’ll center our efforts on helping covered establishments come into compliance with the law. We’ll focus on educational outreach to provide parties with help on how they can efficiently comply with the new provisions. The FDA will allow covered entities a reasonable opportunity to make adjustments to bring themselves into compliance."
The new rule may not result in a sea change of menu revisions since, as the National Restaurant Association notes, thousands of restaurants were already complying with the labeling requirement "in anticipation of the upcoming deadline and because consumers have been asking for more transparency on the nutritional content of the food they order."
In its statement, the FDA explained that Americans currently eat and drink about one-third of their calories outside their home--and, at the same time--child and adult obesity in the U.S. are at historic highs. According to studies, "access to clear and consistent information about calories in restaurant items can help reduce calorie intake, which over time could make a difference in obesity rates."
The FDA further explained that menu labeling is just "one part of a comprehensive tool box -- that includes changes to the Nutrition Facts label and modernization of labeling claims -- to help consumers make healthier choices for themselves and their families." FDA considers this all part of a multi-year "Nutrition Innovation Strategy" that "aims to provide all Americans with easier access to nutritious, affordable foods by arming consumers with information and encouraging the food industry to innovate in producing the healthier foods that today’s informed consumer wants." The strategy also aims to "modernize claims like 'healthy' on food packages, modernize how we establish standards of identity for foods, make ingredient information on labels easier to decipher, help streamline the process for establishing qualified health claims on food labels, and encourage companies to reduce sodium in their products."
We will monitor developments with respect to the implementation of the FDA's menu labeling rule--as well as other aspects of its Nutrition Innovation Strategy--and report on them here at the Product Liability Monitor.