“How Much is that Doughnut in the Window?”

America has a thoroughly documented problem of too many overweight and obese people, with consequences for them and their health, the overall health of the nation, and the cost of health care.  The premise of the requirement in the Affordable Care Act that the Food and Drug Administration (FDA) adopt regulations requiring the disclosure of calories of food purchased in certain restaurants and from vending machines is that knowing the number of calories will positively influence eating behavior and, over time, help to address the nation’s overweight and obesity problem.  The validity of that premise is about to be tested.

On November 25, 2014, FDA finalized two rules requiring calorie information be listed on menus and menu boards in chain restaurants, similar retail food establishments and vending machines with 20 or more locations.

Menu Labeling Requirements

The new regulations require restaurants and similar retail food establishments that are part of a chain with 20 or more locations doing business under the same name and offering for sale substantially the same menu items to provide calorie and other nutrition information for standard menu items, including food on display and self-service food.  Calories must be displayed clearly and conspicuously on menus and menu boards next to the name or price of the item.

The rule includes food facilities in entertainment venue chains such as movie theaters and amusement parks.  Importantly, certain alcoholic beverages served in covered food establishments and listed on the menu or menu board are included, as well.

Additionally, menus and menu boards in covered establishments must display “2,000 calories a day is used for general nutrition advice, but calorie needs vary.”  Covered establishment must provide, upon consumer request, written nutritional information on total calories, total fat, calories from fat, saturated fat, trans fat, cholesterol, sodium, total carbohydrates, fiber, sugars and protein.

The rule defines “location” as a fixed position or site.  “Doing business under the same name” means that the name must be uniform throughout the chain (regardless of ownership).  “Name” is defined as the name presented to the public, or if a general name is used (e.g., “concession stand”), then the name of the parent entity of the establishment.  “Substantially the same menu items” means a covered entity offering for sale a significant proportion of menu items that use the same general recipe and are prepared in substantially the same way, even if the name of the menu item differs.  Finally, “standard menu items” are meant to include those items routinely included on a menu or menu board.

FDA’s final rule lists examples of food that generally would be considered “restaurant-type” food.  These include:

  • Food for immediate consumption at a sit-down or quick service restaurant
  • Food purchased at a drive-through establishment
  • Take-out and delivery pizza; hot pizza at grocery and convenience stores that is ready to eat; pizza slice from a movie theater
  • Hot buffet food, hot soup at a soup bar, and food from a salad bar
  • Foods ordered from a menu/menu board at a grocery store intended for individual consumption (e.g., soups, sandwiches, and salads)
  • Self-service foods and foods on display that are intended for individual consumption (e.g., sandwiches, wraps, and paninis at a deli counter; salads plated by the consumer at a salad bar; cookies from a mall cookie counter; bagels, donuts, rolls offered for individual sale)

Examples of foods that would generally not be “restaurant-type” food include:

  • Certain foods bought from bulk bins or cases (e.g., dried fruit, nuts) in grocery stores
  • Foods to be eaten over several eating occasions or stored for later use (e.g., loaves of bread, bags or boxes of dinner rolls, whole cakes, and bags or boxes of candy or cookies)
  • Foods that are usually further prepared before consuming (e.g., deli meats and cheeses)
  • Foods sold by weight that are not self-serve and are not intended solely for individual consumption (e.g., deli salads sold by unit of weight such as potato salad, chicken salad), either prepacked or packed upon consumer request

Notable exclusions to the rule include schools, trains, and planes.  Additionally, seasonal menu items offered for sale as temporary menu items, daily specials and condiments for general use typically available on a counter or table are exempt from the labeling requirements.

The effective date of this regulation is December 1, 2015, giving covered food establishments approximately one year to comply.

Vending Machine Requirements

Those who own or operate 20 or more vending machines will be required to disclose calorie information for food sold from vending machines.  Calorie information must be clear and conspicuous and placed prominently and may be placed on a sign in, on, or adjacent to the vending machine, so long as the sign is in close proximity to the article of food or selection button.  Additionally, the rule establishes type size, color, and contract requirements for calorie declarations.

Vending machine operators do not have to declare calorie information for a food if a prospective purchaser can view certain calorie information on the front of the package, in the Nutrition Facts label on the food, or in a reproduction of the Nutrition Facts label on the food subject to certain requirements.

Vending machine operators will have two years to comply with the rule.