An Update On Menu Labeling

March 1, 2016

by Andrea Canada, VP, Cul. Nutrition & Sustainability

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As many of you are aware, the Affordable Care Act from 2010 included a requirement for restaurants and food retail establishments to disclose calories on menus and provide additional nutrition information to customers upon request. The FDA has provided several guidance documents to help the food service industry understand who must comply with the ruling and how the requirements should be met.  As it currently stands, the rule would apply to any food service establishment with 20 or more locations (doing business under the same name with similar menus). The deadline from the FDA guidance is December 1, 2016 (but there’s more on that below). Food service establishments include restaurants, coffee shops and cafes, but also movie theaters, amusement parks and groceries with made-to-order items. The FDA’s summary and guidance documents can be found here.

However, recently, the Common Sense Nutrition Disclosure Act of 2015 was passed in the US House of Representatives and would amend menu labeling requirements as they have previously been defined. Below are some notable changes:

• Establishments would be able to determine how best to share calories for multiple-serving items (like a whole pizza), combination meals and builds.
• Nutrition information would not likely be necessary on coupons, flyers, or advertisements and for operations where most orders are placed remotely, online disclosure of calories and information would be sufficient (as opposed to menus or menu boards).
• Assuming an operation has taken reasonable means to determine nutrition information, variation from actual nutritional content would be allowed and operations would be granted a grace period of 90 days to correct violations before any public letter regarding the violation was announced.
• Establishments would have 1 year from the date of final guidance to comply.

So what does this all mean?

For the changes to become law, the bill from the House would need to be passed by the Senate (the Senate currently has their own version that is still in committee) and then signed by the President. If it does make it past the Senate, President Obama has already voiced his objections to the changes. 

Further complicating things, even before this bill passed the House, the omnibus spending bill which became law in December 2015 extended the deadline for compliance with menu labeling to one year from the final guidance from the FDA. Currently, there’s been no new guidance from the FDA since September 2015 (however the information on their website which was last updated before the passage of the omnibus bill still sets the deadline as December 1, 2016).

Restaurant operations ask our opinion about what we think will happen with menu labeling. Certainly the outcome of the elections this year could impact the fate of menu labeling. In the meantime, while the nuances of how to share nutrition information with customers and the deadline for compliance are still being debated, the eventual requirement for menu labeling is not. And increasingly, customers appreciate the transparency of restaurants that provide nutrition, allergen and other ingredient information. Those operations that have taken steps to have their menus analyzed will be better prepared to meet the labeling requirements once they are final.

UPDATE March 9, 2016: FDA announced that due to the language in the omnibus spending bill passed December 2015, menu labeling enforcement will commence one year from the issuance of final guidance. FDA states that final guidance will be released as soon as possible.

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