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What the FDA menu-labeling regs really mean

So you don’t quite feel up to struggling through all 183 pages of the U.S. Food and Drug Administration’s proposed menu-labeling regulation?

Don’t worry. The editors of Nation’s Restaurant News have read through the epic document and attempted to address many of the key questions foodservice operators might have about the proposed rules.

The FDA issued the much-anticipated regulations April 1 after missing an initial deadline of March 23 — one year after President Obama signed the provision into law as part of the federal health care reform, or the Patient Protection and Affordable Care Act of 2010.

The agency attributed the delay to the complexity of the issue — a concern shared by many in the industry who worried that the government would attempt to fashion a one-size-fits-all solution. But now that the document is finally here, the industry can see for itself, and many associations and operators are thumbing through the document as we speak.

“The publication of the proposed regulations in the Federal Register … is the next step forward in providing the industry with consistent, national requirements on how to implement the new uniform nutrition information standard,” Dawn Sweeney, president and chief executive of the National Restaurant Association, said in a statement Friday.

“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 added.

For those who still want to weigh the document as presented, the proposed regulations can be found at

The industry has less than 60 days to comment on the proposed rules.

NRN selected some of the biggest questions operators may have, with explanations to follow:

Who must follow the rules?
Restaurants or similar retail food establishments with 20 or more locations nationwide, conducting business under approximately the same name and offering for sale essentially the same food selections. A “restaurant or similar food establishment” is defined as an operation whose main business is selling restaurant or restaurant-type food to consumers. An establishment's primary business activity would be the sale of food to consumers if:

• The business presents itself as a restaurant, or
• Greater than 50 percent of the businesses’ total floor space is used for the sale of food.

Who does this generally include?
• Table-service establishments
• Quick-service establishments
• Cafeterias
• Pastry and retail confectionary stores
• Coffee shops
• Snack bars ice cream parlors
• Multi-purpose establishments that have presented themselves publicly as restaurants
• Establishments within larger establishments that are part of a chain — for example, a Starbucks in a Barnes & Noble.
• Grocery Stores
• Convenience Stores
• Vending machines

Who is generally not included?
Businesses whose main purpose is not to sell food, such as:
• Movie theaters
• Amusement parks
• General merchandise stores
• Hotels
• Trains
• Planes

What's in a name?
The term “same name” includes names that can be slight variations on each other, based on region, location or size. For example, “Joe’s Burgers New York Ave.” and “Joe’s Burgers Pennsylvania Ave.” or “ABC” and “ABC Express.”

What's in a recipe?
The term “offering for sale substantially the same menu items” means offering selections that use the same general recipe and are prepared in substantially the same way with substantially the same food components, even if the name of the item may vary. For example, a chain may call a sandwich “Bay View Crab Cake” at one unit but another restaurant in that chain that makes the same sandwich the same way may call it “Ocean View Crab Cake.” These restaurants would be menuing the same selection, according to the FDA.

What's exempt from standards menu labeling?
The new requirements do not apply to custom orders, daily specials, food that is part of a market test, temporary menu items, alcoholic beverages, and condiments on the table.

What's a custom order?
The term “custom order” means a food order that is prepared in a specific manner based on an individual consumer’s request, which requires the restaurant or similar retail food establishment to deviate from its usual preparation of a menu item. In this case, the FDA says the restaurant can post a range of calories for items that are customized — like pizza, where there might be 20 different toppings, combination meals, or ice cream, where there may be many flavors. The calories for different flavors of ice cream or combination meals would be disclosed in the format “xx-yy,” or lowest to highest caloric content.

What is a daily special?
The term “daily special” means a menu item that is prepared and offered for sale on a particular day, that is not routinely listed on a menu or offered by the restaurant and that is promoted as a special menu item for that particular day.

What constitutes a market test?
The term “food that is part of a customary market test” means food that is marketed in a covered establishment for fewer than 90 consecutive days in order to test consumer acceptance of the product.

What is a temporary menu item?
The term “temporary menu item” means a food that appears on a menu or menu board for less than a total of 60 days per calendar year.

What about self service or food on display?
Restaurants that feature customer self-service areas like hot and cold food bars or self-service beverage machines must label food selections at the place they are displayed. When a self-service food is already accompanied by an individual sign adjacent to the item that provides the food’s name, price, or both, listing calories per displayed food item or per serving on that sign satisfies the requirement.

How to present calories on menus
Calories must be posted on menus and menu boards in the same color — or in a color at least as conspicuous as — the color of the name of the associated standard menu item. The calorie declaration must have the same contrasting background as the background used for the name of the associated standard menu item on the menu or menu board. In addition, the calorie declaration must be in a font size large enough to be “clear and conspicuous.”

Do your ads have to be labeled?
FDA says advertisements for food fall outside the scope of the requirements. However, take-out and delivery menus, which include all or a significant portion of items offered for sale and serve as the primary source from which consumers can order, would be qualified as menus under the proposed rule.

What about the internet?
If consumers can order from a qualifying restaurant online, over the phone, or by fax, using an electronic version of the menu as the primary source to place an order, then the Internet menu must post caloric content.

When does this take effect?
FDA is proposing that the final rule become effective six months from the date of its publication of the official rules. Some sources believe that will occur at the end of 2011.

How many restaurants will be affected?
FDA estimates about 278,600 restaurants organized under 1,640 chains will be affected.

How much will it cost?
Initial costs are estimated to be $1,100 per establishment. However, this figure combines the average per establishment cost of $1,800 per limited service eating establishments — those most likely to have more than one menu board or major display serving as a menu — with full service restaurants averaging less than $1,000 per establishment.

Tell us what you think, comment below the story.

CORRECTION: In an earlier version of this story, grocery stores and convenience stores were incorrectly listed as not being included in the list of establishments covered by the menu-labeling regulations issued by the FDA. Grocery stores and convenience stores would be subject to the rules.

Contact Paul Frumkin at [email protected].

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