Restaurateurs need to be on top of menu labeling laws “pretty much yesterday,” attorney Trent Norris told attendees of last week’s webinar presented by Nation’s Restaurant News and Dow AgroSciences.
Although national menu-labeling regulations won’t be clearly outlined for several months, restaurant chain operators with 20 or more locations should be exploring ways to comply with the law, preparing for possible pitfalls like lawsuits and creating procedures to work with suppliers and franchisees on new supply chain procedures.
Participating in the webinar, titled “Menu labeling, healthy solutions to a weighty issue,” were National Restaurant Association public affairs specialist Dan Roehl; attorney Trent Norris of Arnold & Porter LLP; nutritionist Debe Nagy-Nero of quick-service hamburger chain Burgerville; and Dave Dzisiak of Dow AgroSciences.
Nation’s Restaurant News executive editor Robin Lee Allen moderated the discussion.
Rules for mandatory nutrition labeling for food sold at chain restaurants and similar retail food establishments with 20 or more locations was part of the Patient Protection and Affordable Health Care Act that was signed into law on March 23, 2010. Since then, the Food and Drug Administration has been getting feedback from interested parties as it works to determine the specific requirements. That commenting period closes July 5, Roehl said, and the FDA will likely issue the final rules several months after that. The FDA then plans to enforce regulations six months from the final determination.
Roehl presented some of the comments the NRA is presenting to the FDA on behalf of its members, including a wanted delay of enforcement to one year from the date the rules are issued, and an enforcement standard that recognizes what Roehl called “the inherent variability of hand-prepared food.” He said the NRA argued that chef-driven, hand-prepared food should require more relaxed standards because of variability of preparers than the rules for packaged goods.
Nutritional information on packaged goods is allowed a 20 percent deviation.
“This is a critical issue which we’re going to be discussing with the FDA,” he said.
The NRA also is requesting that menu labeling information allow for portion size information. For example, rather than listing the calories of an entire pizza, operators should be allowed to list the number of calories per portion, he said, noting that consumers are accustomed to looking for portion or serving sizes on packaged goods.
Enforcement beyond federal regulations
Although the federal government doesn’t plan to enforce menu labeling laws for another year, that doesn’t mean local governments and private citizens won’t get involved, said attorney Norris, who recently represented a restaurant chain in a class action lawsuit regarding menu labeling.
He outlined for the more than 500 webinar participants what kind of legal exposure chain restaurants faced if they didn’t post calorie information according to federal regulations.
For example, while law enforcement agencies likely would simply seek injunctions for non-compliance, sending a warning letter that required a response, some may also seek monetary penalties, which could total $10,000 per violation. More troublesome, Norris said, is what he called “private enforcement” through class action lawsuits. Those can be triggered when an enforcement agency issues a warning letter, which can attract the attention of lawyers he said.
He also pointed out that restaurants posting additional information that isn’t required by law may actually open chains to legal action.
Norris said “the enforcement community” is paying particular attention to items marketed as being better for you. Operators can’t count on disclaimers to protect them from lawsuits. That means, for example, if a restaurant advertises that a particular item has fewer than 100 calories, “you might have to defend that under traditional false advertising laws,” he said.
There have been no such lawsuits yet, he added.
How to comply
Norris said that one crucial factor in staying in compliance with the law is making sure that, as recipes and suppliers change, chains need to consider changing their nutritional information. He added that franchise agreements should stipulate whether the franchisee or franchisor is responsible for menu compliance — a step he has yet to see from restaurant chains.
Tools exist to help restaurateurs comply with menu-labeling laws, said Nagy-Nero, director of quality assurance, nutrition and safety at 39-unit, quick-service chain Burgerville. The chain, which operates in Washington and Oregon, has provided calorie information for the past 15 years on its website, and, in compliance with a 2010 law in Oregon, also has the information on in-store brochures.
She advised the webinar participants to get in front of menu labeling regulations and make use of the American Dietetic Association’s  menu labeling certification program.
She recommended having a registered dietician review menus to make sure that the data looks reasonable for each menu item. She said other nutrition consulting and analytical services could be found at healthydiningfinder.com, a site created by Healthy Dining to help promote and classify restaurant menu information .
Dow AgroScience’s Dzisiak noted that suppliers often have broad experience in complying with federal regulations, menu-based or not. He noted that Dow AgroSciences has experience in replacing hydrogenated oils when they fell out of favor and understand the importance of developing products that address public health concerns. It is a fine line between compliance and making certain the food tastes well and performs in restaurants — a line they are comfortable with. Oils need to be durable and have a good fry life as well as comply with regulations and produce food that customers like, for example.
“You should expect your suppliers to come with good ideas,” he said, and advocated challenging supplier partners to deliver those ideas and listen for best practices and other opportunities.
Dow AgroSciences  is a wholly owned subsidiary of The Dow Chemical Company, and is based in Indianapolis, Ind. The division’s products and services are designed to solve crop production problems for clients and to boost agricultural productivity.