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FDA issues menu-labeling guidance

Industry has 60 days to comment before agency nails down final rules

The U.S. Food and Drug Administration published Friday its much-anticipated proposed menu-labeling regulations for chain restaurants.

The FDA had missed an initial deadline of March 23 — one year after President Obama signed the provision into law as part of the Patient Protection and Affordable Care Act of 2010. The agency attributed the delay to the complexity of the issue.

The industry and general public will have 60 days to comment. The FDA is expected to publish its final regulations by the end of this year, and enforcement could begin as early as summer of 2012.

The proposed regulations can be found as a 183-page document at

“These proposals will ensure that consumers have more information when they make their own food choices,” said Kathleen Sebelius, secretary of the U.S Department of Health and Human Services. “Giving consumers clear nutritional information makes it easier for them to choose healthier options that can help fight obesity and make us all healthier.”

Among the key regulations addressed in an overview issued by the FDA are the following:

Establishments covered: Restaurants or similar retail food establishments with 20 or more locations, conducting business under the same name and offering for sale basically the same menu selections are covered under the rules.

Businesses whose main purpose is not to sell food — such as movie theaters, airplanes and bowling alleys — wouldn’t be subject to these rules, the FDA said.

A “restaurant or similar food establishment” is defined as an operation whose main business is selling restaurant food or restaurant-type food to consumers. An establishment's primary business activity would be the sale of food to consumers if it presents itself as a restaurant, or if more than 50 percent of its total floor space is used for the sale of food, according to the FDA.

Display of calorie counts: Calories would be posted on all menus and menu boards, including those at drive-thru locations. The term “Calories” or “Cal” must be posted clearly and prominently on menus and menu boards adjacent to the number of calories. Calories for variable menu items, such as combo meals consisting of a choice of sandwich, side dish and beverage — would be displayed in ranges.

For foods on display, calories would be listed per item or per serving on a sign adjacent to the food.

For self-service foods, such as a salad bar, calories also would be listed per serving or per item on a sign next to the food.

Dawn Sweeney, president and chief executive of the National Restaurant Association, called the proposed regulations issued Friday “the next step forward in providing the industry with consistent, national requirements on how to implement the new uniform nutrition information standard.”

“The National Restaurant Association anticipates there will be many questions and after full review of the proposal, will provide detailed comments to the FDA to ensure that restaurants are provided adequate time and are able to comply with the regulations effectively, as well as provide information to consumers in the most usable way,” she said.

While industry association officials had earlier voiced concerns that a “one size fits all” approach to regulations would be unworkable for the highly fragmented restaurant industry, they said they welcomed the opportunity to continue to work with the FDA to help shape the final rules.

“We look forward to reviewing the FDA’s proposal in detail over the coming days,” said Scott Vinson, vice president of the National Council of Chain Restaurants. “The industry has been and remains fully supportive of menu labeling, and wants to ensure it is done in the most effective way possible for our customers as well as for our companies and small business franchisees.

“We’ve been sharing with the FDA over the last several months the chain industry’s perspective on the best way to create a flexible, workable framework for menu labeling,” he added. “We hope our review shows that the proposed regulations reflect this work.”

Stephen Caldeira, president and chief executive of the International Franchise Association, said his group “appreciates the FDA’s willingness to work directly with the franchised restaurant industry, and we hope the final rules will result in a workable and affordable regulation for small restaurant owners, particularly in a still-challenging economic environment.”

The regulations, which require that calorie counts be posted on menus and menu boards, will apply to chain operators with 20 or more outlets across the nation.

Although restaurateurs generally support federal menu labeling regulations that would pre-empt a patchwork of state and local laws, many remain doubtful that listing calorie counts will significantly affect ordering behavior.

In a recent study, however, The NPD Group found that certain consumers might avoid items like French fries, larger hamburgers and shakes when confronted with calorie content.

EARLIER: What calorie postings mean to consumers

In the study, The NPD Group asked adults to order from two versions of a typical quick-service menu, one with calories listed and one without. While participants’ orders from the two menus contained roughly the same number of calories, consumers ordered fewer high-calorie items from the menu with nutrition data listed than they did from the unlabeled menu.

Tell us what you think about the proposed regulations by commenting below.

Contact Paul Frumkin at [email protected].

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