SAFEGUARDS | Food NO. 095/17

SafeGuardS Lemon Lime

New York City notified chain restaurants and retailers that starting May 22, 2017 they are required to adhere to the city’s menu labeling rule if they have 15 or more locations nationwide. This has been introduced because the US FDA announced a delay in the federal menu labeling law until May 7, 2018.

US FDA delays menu labeling compliance [1]

On May 4, 2017 the US food and Drug Administration (US FDA) postponed the compliance date of the nutritional labeling of standard menu items in restaurants and similar retail food establishments from May 4, 2017 to May 7, 2018. The final regulations were published December 14, 2014. The US FDA is delaying the compliance date to consider how to further reduce the regulatory burden or increase flexibility while meeting the legal requirements as designated in the law.

Menu Labeling Rule

This rule helped to finalize the Menu Labeling Provisions of Section 4205 of the Patient Protection and Affordable Care Act of 2010, also known as the Affordable Care Act, that was signed into law on March 23, 2010 [2]. Section 4205 of the Affordable Care Act became effective March 23, 2010, however some provisions required the FDA to issue final rules before they could be implemented. Section 4205 of the Affordable Care Act amends Section 403 of the Food Drug and Cosmetic Act of 1938.

The final rule requires restaurants and similar retail food outlets, including those in movie theaters and amusement park establishments, with 20 or more locations nationwide, doing business under the same name and offering for sale substantially the same menu items, to provide calorie information for standard menu items by the name or price of the item. “Seasonal menu items offered for sale as temporary menu items, daily specials, custom orders and condiments for general use typically available on a counter or table are exempt from the labeling requirements” providing no nutritional or health claims are made or other nutrient information is provided [3]. Certain alcoholic beverages are now also included in this rule, and their calorie content must be listed. Additionally, mixed dish items such as pizza will now be allowed more flexibility in declaring calorie content. For example, for pizza the calories per slice can be declared instead of the whole item. The US FDA has clarified that food purchased from a retail establishment that is typically intended for more than one person to eat and requires additional preparation before consumption, is not covered by this rule.

Menu and menu boards are to include the statement “2,000 calories a day is used for general nutrition advice, but calorie needs vary” [4]. In addition, these companies are to provide, on consumer request, written nutrition information about total calories, calories from fat, total fat, saturated fat, trans fat, cholesterol, sodium, total carbohydrates, fiber, sugar and proteins. This information may be provided by counter card, sign, poster, handout, booklet, loose-leaf binder, menu or electronic device or by other similar means.

Nutrient values, as per 21 CFR 101.11 (c), can be determined by nutrient databases, published cookbooks with nutritional information for the recipes, laboratory analysis or by other reasonable means, such as calculation from the recipe and label nutrition facts panels of the ingredients.

New York City requires posting of calorie information [5]

On May 18, 2017, New York City issued a press release announcing that all New York City chain food retailers which have 15 or more establishments nationwide will be required to comply with the city’s calorie labeling requirements effective May 22, 2017. Failure to comply can result in the issue of a notice of violation, and beginning August 21, 2017 operations in violation may be subject to fines of $200 to $600. New York City’s original menu labeling law case enacted in 2008 and updated in 2015 but enforcement was delayed in anticipation of the federal rule. When the federal rule was delayed, the City has decided to enforce this new menu labeling rule.

The calorie information posting is just part of this regulation as a statement of “2,000 calories a day is used for general nutrition advice, but calories needs vary” and “additional nutritional information available upon request” must be posted too. Statements are different for children’s menus. Additional nutritional information such as calories from fat, total fat, saturated fat, trans fat, cholesterol, sodium, total carbohydrates, dietary fiber, sugar and protein will have to be made available upon request by the consumer. Temporary items, as defined as those offered for fewer than 60 days per calendar year are not required to list this information. Those items part of an acceptable testing of no more than 90 consecutive days are also exempt.

The new rule provides the option of listing the calories per the whole menu item, or by the serving unit [6]. Example

SafeGuardS 09517 Figure 1

In the guidance there are more examples for combination meals and toppings, plus an explanation of how information for self service items is to be provided.

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