On November 25, 2014, the U.S. Food and Drug Administration (FDA) announced its long-awaited final rule requiring calorie information to be listed on menus and menu boards in chain restaurants and similar retail food establishments.  Covered restaurants and similar retail food establishments will be required to (1) disclose calorie information on menus and menu boards for standard menu items, (2) post a succinct statement concerning suggested daily caloric intake on menus and menu boards, and (3) provide additional written nutrition information to customers upon request. 

Who and What Is Covered?

The new rule applies to restaurants and similar retail food establishments that serve “restaurant-type foods” and that are (1) part of a chain of 20 or more locations, (2) doing business under the same name, and (3) offering for sale substantially the same menu items.  The phrase “restaurant-type foods” is generally defined as food that is usually eaten on the premises, while walking away, or soon after arriving at another location.  As long as meet they these criteria, sit-down restaurants, fast-food restaurants, grocery stores, convenience stores, bakeries, coffee shops, and entertainment venues like movie theaters, amusement parks, and bowling allies are covered establishments that must comply with the FDA’s new menu-labeling rule.  While the National Restaurant Association says it welcomes the new rule because it will standardize menu-labeling requirements throughout the country, groups like the National Grocers Association, the Food Marketing Institute, and the Association for Convenience & Fuel Retailing have criticized the rule for extending to grocery stores and convenience stores. 

For covered establishments, the FDA’s new menu-labeling rule applies to things like:

• • Meals for sit-down and fast-food restaurants;
  • Take-out and delivery foods, such as pizza;
  • Foods purchased at drive-through windows;
  • Foods, such as made-to-order sandwiches, ordered from a menu or menu board at a grocery store, delicatessen, or convenience store;
  • Self-service foods from a salad bar or hot-food bar at a restaurant or grocery store;
  • Muffins at a bakery or coffee shop;
  • Alcoholic beverages when they appear as standard menu items; and
  • A scoop of ice cream, milk shake, or sundae from an ice-cream store.

What Is Required?

Covered establishments must list the calorie information for standard menu items, including combination meals, on their menus and menu boards.  In addition, menus and menu boards must contain the following succinct statement about suggested daily caloric intake: "2,000 calories a day is used for general nutrition advice, but calorie needs vary."

Calorie information and the succinct statement must be clearly displayed on menus and menu boards.  The number of calories contained in each standard menu item must be listed next to the name or the price of the associated menu item.  The size of the calorie declaration cannot be smaller than the name or the price of the menu item, whichever is smaller.  In general, such calorie declarations must be in the same or a similar color as the name of the menu item.  In addition, calorie information must be declared on signs next to self-service foods and foods on display, such as salad bars and buffets. 

The FDA’s new rule also requires covered establishments to include a statement on their menus and menu boards that additional written nutrition information is available upon request.  The following nutrition information for standard menu items must be provided to customers in writing upon request:  total calories, calories from fat, total fat, saturated fat, trans fat, cholesterol, sodium, total carbohydrates, fiber, sugars, and protein. 

Substantiation

A covered establishment must have a reasonable basis for its nutrient content declarations.  Nutrient values can be determined using nutrient databases, cookbooks, laboratory analyses, the Nutrition Facts label on packaged foods, and other reasonable means.  In addition, a covered establishment must take reasonable steps to ensure that the method of preparation and serving size adhere to the factors on which nutrient values were determined.  Upon request from the FDA, a covered establishment must provide information substantiating the nutrient values, including the method and data used to derive such values.

Deadline to Comply

Covered establishments have one year from December 1, 2014, to begin complying with the new rule.  

© 2014 Perkins Coie LLP