Home Home About Us Practice Areas Our Attorneys Press & Publications Events Diversity Pro-Bono Careers

Advertising, Marketing & Promotions Alert >> FDA Issues Menu-Labeling Guide for Restaurants

May 17, 2016

The federal Food and Drug Administration (FDA) has issued a 58-page menu labeling guide for restaurants and retail establishments selling "away-from-home" foods. The guide, which states that it represents the FDA's "current thinking" on menu labeling, explains the establishments that are covered, the products that are covered, the information that must be disclosed, and where that information must be located.

Although the guide contains only "nonbinding recommendations," industry members should become conversant with its provisions – some of which might be surprising.

Covered Establishments
The guide defines a "covered establishment" as a restaurant or similar retail food establishment that offers restaurant-type food for sale and that is a part of a chain with 20 or more locations doing business under the same name and offering for sale substantially the same menu items.

The definition is broad enough to cover "bakeries, cafeterias, coffee shops, convenience stores, delicatessens, food service facilities and concession stands located within entertainment venues (such as amusement parks, bowling alleys and movie theatres), food service vendors (such as ice cream shops and mall cookie counters), food takeout or delivery establishments (such as pizza takeout and delivery establishments), grocery stores, retail confectionary stores, superstores, quick service restaurants and table service restaurants," among others.

A covered establishment also includes one that has voluntarily registered with the FDA to be subject to the FDA's nutrition labeling requirements.

Products Covered
Calorie and other nutrition information must be provided for standard menu items offered for sale in covered establishments, that is, for restaurant-type foods that routinely are included on a menu or menu board or that routinely are offered as self-service food or food on display.

Foods that are exempt from the calorie and other nutrition label requirements include condiments for general use, daily specials, temporary menu items, custom orders, food that is part of a customary market test, self-service food and food on display that is offered for sale on fewer than 60 days a year or for fewer than 90 consecutive days to test consumer acceptance, and alcoholic beverages that are on display but are not self-service foods (such as bottles that a bartender uses to prepare drinks).

Nutrition Information
As the FDA explains in the guide, covered establishments generally must provide the number of calories contained in a covered item and must provide certain additional written nutrition information upon a consumer’s request.

Menus and Menu Boards
According to the guide, the following nutrition information must be provided on a menu or menu board for standard menu items listed on a menu or menu board:

  • The number of calories in each listed standard menu item as usually prepared and offered for sale.
  • The statement that "2,000 calories a day is used for general nutrition advice, but calorie needs vary."
  • When a children’s menu is offered, a covered establishment can use the "2,000 calories" statement noted above or the statement that "1,200 to 1,400 calories a day is used for general nutrition advice for children ages 4-8 years, but calorie needs vary" or "1,200 to 1,400 calories a day is used for general nutrition advice for children ages 4-8 years and 1,400 to 2,000 calories a day for children ages 9-13 years, but calorie needs vary."
  • The statement "Additional nutrition information available upon request."

According to the guide, the following additional nutritional information must be made available upon a customer’s request for each menu item, in the following order and using the measurements specified:

  • Total calories (cal)
  • Calories from fat (fat cal)
  • Total fat (g)
  • Saturated fat (g)
  • Trans fat (g)
  • Cholesterol (mg)
  • Sodium (mg)
  • Total carbohydrate (g)
  • Dietary fiber (g)
  • Sugars (g)
  • Protein (g)

Other Written Materials
The guide makes it clear that the required calorie information must appear on more than just menus and menu boards. In certain instances, for example, a coupon must include required calorie information. For example, a standalone coupon that can be used to place an order because it contains the name of a standard menu item, its price, and a phone number or website where the customer can place an order would need to provide calorie information. On the other hand, there is no need to include calorie information on a coupon for a standard menu item that is attached to a takeout menu where the calories for the item are noted elsewhere on the takeout menu.

Other advertising and marketing materials – including coupons that do not include a web address or phone number for placing orders – generally do not need to provide calorie information because the guide does not consider them to be menus or menu boards.

In other words, written materials that include the name, or picture, and price of a standard menu item and can be used by a customer to make an order selection at the time the customer is viewing the writing are considered part of the menu or menu board and must have the necessary disclosures.

Other Issues
The guide contains a wide variety of other information, from how calorie information should be listed for a standard menu item offered as a multiple-serving item, a combination meal or an alcoholic beverage to how nutrient values should be determined and the location and type size for the required calorie information on menus and menu boards.

The Bottom Line

Restaurants, retailers and companies that own retail establishments have been living with the FDA’s rule requiring the listing of calorie information on menus and menu boards for almost two years. They now face a substantial expansion of menu listing requirements that not only address what information must be posted but also regulate where it would have to appear. The extent to which the new requirements are manageable will depend in large part on how the FDA responds to comments on the guide, which it is welcoming. Davis & Gilbert is available to prepare and deliver comments to the FDA on clients’ behalf.