As restaurant chains across the country digest the 300-plus-page rules on menu labeling published by the Food and Drug Administration last month, some details remain unclear.
By December 2015, all restaurant chains with 20 or more units will be required to post calorie counts for standard menu items on menus and menu boards, as well as offer more detailed nutrition information on request in restaurants. The rules are expected to affect about 1,600 chains that include nearly 300,000 restaurant locations.
The long-awaited rules aim to bring a uniform standard to menu labeling that will replace the patchwork of requirements in 15 states and local jurisdictions that currently require menu labeling. The rules would also apply nationwide, creating a more level playing field.
For thousands of restaurants that either voluntarily provide calorie counts or already comply with state or local mandates, changes to menus and menu boards will be necessary in the next year to comply with the new federal rules.
For some, menu labeling will be a new experience. For example, PizzaRev, the rapidly growing fast-casual pizza chain, will be among those posting calories for the first time within the coming year.
Already ahead of the game, the 19-unit chain — which expects to add another 30 locations in 2015, and will therefore be required to post calories — recently unveiled a new online nutrition calculator that lets guests use their own devices to determine calorie counts as they build their pizzas with various toppings. Soon, PizzaRev will add calorie counts to its menu boards in compliance with the federal rules.
The information is what consumers today want, said Nicholas Eckerman, PizzaRev’s cofounder and chief operating officer. “We want to move toward further transparency,” he said.
The new rules also vastly increase the scope of venues that must disclose nutrition information, including grocery and convenience store chains, movie theaters, bowling alleys, ice cream shops and amusement/theme parks. Food trucks are exempt.
Though the federal rules are very specific, restaurant chains will have a lot of flexibility in how they provide nutrition information in a way that fits with their menu design, said Chip English, an attorney in the food and beverage practice at Davis Wright Tremaine in Washington, D.C.
However, there are still some questions, he said.
For example, the rules say restaurant chains with more than 20 units must comply, but they don’t specify where those restaurants may be.
“Theoretically, you could have one restaurant in Seattle and 19 in British Columbia and have to comply,” English said. “I think that will have to be clarified.”
The FDA also hasn’t specified how the federal rules will be enforced.
“That’s something they said they’ll be working on to better define,” said Dan Roehl, vice president of government relations for the National Restaurant Association.
English said restaurant chains that don’t comply with the federal rules will more likely be policed by their competitors, who could potentially claim unfair competition, as well as potential plaintiffs attorneys representing class-action-seeking consumers looking for an opportunity to sue.
The FDA rules apply to chains with 20 or more restaurants operated under the same name or offering substantially the same menu items.
That would mean the mandate would apply to restaurant companies with very similar concepts operating under slightly different names. A chain with 10 units called Bob’s Bar & Grill and 11 named Bob’s Brewhouse & Grill, for example, but offering virtually the same menu, would be required to post calories.
Anita Jones-Mueller, president and founder of San Diego-based Healthy Dining, which helps consumers make healthful menu choices, agreed that restaurant chains will need to dedicate time and energy to menu nutritionals in the coming months.
“It’s not as easy as just printing the calories on the menu for most restaurants,” she said. “It will take some time to look at whether there’s a way to design the information so guests can use it better.”
Here are some more highlights from the new federal rules:
• Limited-time offers. Menu items that are temporary — those on the menu less than 60 days — will be exempt from the nutrition labeling requirements.
Restaurants that are testing new dishes have up to 90 days before the calorie-posting requirement kicks in. Chains can also test an item in different markets as long as they stay within the 90-day limit.
• Calories must be posted wherever guests can place an order. The federal rules require that calories must be posted on any menu where items and prices are listed and customers can place orders.
That means drive-thru windows, as well as inside restaurants. It also may include mailers that have menu listings customers might use to place an order by phone or online. Mobile apps and websites will also have to include calories counts.
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The NRA’s Roehl said the FDA left room for exempting marketing materials, however, so that rule may require more clarification.
• Calorie ranges. Chains that offer build-your-own menus, like Chipotle Mexican Grill, can post a range of calories for certain items, like a burrito. For such dishes, ingredients will vary widely, depending on what the customer chooses to put in it.
However, if a restaurant offers a dish with only a two variations — a sandwich with chips or side salad, for example — calories must be posted for each option with a slash, as in: 350/450 calories.
• Alcohol. One key feature of the federal rules is that restaurant chains will be required to post calorie counts for standard beverages, including alcohol. Calorie ranges can be used for categories like beer and wine. Customized cocktails are exempt, but for chains that offer 30 to 40 types of whiskey on a core menu, for example, posting calories could be a challenge, English said.
• Nutrition information on request. While the federal rules focus on calorie counts, restaurant chains must also offer more complete nutrition information on request in each restaurant.
That means restaurants won’t be able to refer customers to a website or online calculator. Restaurants can offer the information in print form or via touchscreen tablet as long as customers can access it in each restaurant.
The nutrition information must include details like fat, calories from fat, saturated fat, cholesterol, sodium, carbohydrates, fiber, sugars and protein, as well as one data point that is not often disclosed: trans fats.
• Calorie disclosure phrase. Under the federal rules, restaurants must include the specific statement: “2,000 calories a day is used for general nutrition advice, but calorie needs vary.”
The phrase only has to appear once on a menu, but a statement about more detailed nutrition information being available on request must appear on every page of a menu, English said.
• State and local laws. Chains that meet the federal requirements must follow the new rules and will no longer be subject to local and state mandates. However, chains with fewer than 20 locations may still have to comply with applicable state and local laws, unless they voluntarily register with the FDA to comply with the federal requirements.
Contact Lisa Jennings at [email protected].
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