What Nashville set out to do more than five years ago has finally become a federal mandate with the Food & Drug Administration issuing two final rules late last year requiring calorie information be listed on menus and menu boards in chain restaurants, similar retail food establishments and vending machines with 20 or more locations.
Back in 2009, the Metro Board of Health — with the staunch support of Metro Public Health Department Director William Paul, MD — passed regulations to address the city’s climbing obesity rates by requiring caloric information be included on menus and sign boards for chain restaurants in Davidson County with 15 or more locations in Middle Tennessee or across the country. Set to go into effect at the end of March 2010, the regulations were withdrawn when similar national requirements were included in the 2010 Patient Protection and Affordable Care Act to avoid having restaurants potentially implement local rules only to turn around and change signage again to meet the federal requirements.
As it turns out … it wouldn’t have been a very quick turn-around. In fact, in the ensuing years, a number of restaurants including Panera, McDonald’s and Au Bon Pain voluntarily began posting calorie counts well in advance of federal regulations going into effect. The new federal final rules, which must be implemented by November 2015 barring legal and political challenges, are intended to replace the patchwork of local and state regulations that have sprung up over the past decade.
In announcing the new restaurant rule, which requires covered food establishments to “clearly and conspicuously” display calorie information for standard items on menus and menu boards next to the name or price of the item, FDA Commissioner Margaret A. Hamburg, MD, said, “Making calorie information available on chain restaurant menus and vending machines is an important step for public health that will help consumers make informed choices for themselves and their families.” She also noted Americans eat and drink a full one-third of their calories away from home.
According to the FDA release, “The menu labeling final rule applies to restaurants and similar retail food establishments if they are part of a chain of 20 or more locations, doing business under the same name and offering for sale substantially the same menu items.” The rule also includes some pre-packaged, prepared foods sold at grocery and convenience stores intended for takeout dining by individuals. The rules don’t apply, however, to prepared items intended to feed multiple people like a rotisserie chicken or prepared meatloaf sold at the grocery. Still, both the National Association of Convenience Stores and the National Grocers Association have accused the FDA of going beyond congressional intent.
In expressing his disapproval of convenience stores being included in the menu labeling regulations, NACS Senior Vice President for Government Relations Lyle Beckwith said, “It is now up to the bipartisan, bicameral opponents of this regulatory overreach to enact legislation introduced in both houses of Congress that reasonably defines a restaurant as a business that derives at least 50 percent of revenue from prepared food.”
Also catching many by surprise was the inclusion of some alcoholic beverages in the final rule. Although mixed drinks at a bar aren’t subject to the regulation, an alcoholic beverage included on the menu of covered food establishments is required to have calories posted. Originally exempted, the final rule also included menu items in entertainment venue chains including movie theaters and amusement parks. The federal agency did make some adjustments in light of more than 1,000 public comments, such as allowing pizza to be labeled by the slice to more accurately reflect an individual’s caloric consumption of a multi-serving dish.
In addition to the calorie counts on menus and boards, covered food establishments also must provide nutrition information about total calories, total fat, calories from fat, saturated fat, trans fat, cholesterol, sodium, total carbohydrates, fiber, sugars and protein in writing upon consumer request.
Hamburg reiterated the rules only apply to those with 20 or more locations and do not impact independent restaurants, bars or grocery stores and do not apply to food trucks, ice cream trucks, food served on airplanes or other transport vehicles.
The vending machine requirement, which pertains to those who own or operate more than 20 vending machines, requires similar posted calorie information for items sold in each machine. Vending machine operators have two years to implement the new requirements.
Both the menu and vending final rules were published in the Federal Register on Dec. 1, 2014. To link to the details of each rule, go online to federalregister.gov/topics/food-labeling.
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