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Industry prepares for menu labeling

Sysco SHAPE April 2018

Chains take action to comply with final FDA rules despite uncertainty surrounding House bill.

Barring any unforeseen developments, the long-awaited federal menu labeling requirements are expected to take effect May 7 of this year. 

The only adjustments — if any — to the Food and Drug Administration's rules would likely originate from a bill passed in February by the House of Representatives that has yet to come up for a vote in the Senate. Even if enacted, experts say, the bill — titled the Common Sense Nutrition Disclosure Act — would not require sweeping changes to the FDA's final menu rules.

“If passed by the Senate, this bill will provide additional flexibility in how restaurants display nutrition information,” Anita Jones-Mueller, president and founder of San Diego-based Healthy Dining, writes in Nation's Restaurant News.

Meanwhile, the final requirements are expected to impact more than 250,000 restaurants.

Avoiding a patchwork quilt

The federal menu labeling law was passed in 2010 as a part of the Patient Protection and Affordable Care Act, also known as Obamacare. It supersedes menu labeling rules enacted previously by several states and local jurisdictions, thereby avoiding a confusing and expensive patchwork quilt of regulations, the National Restaurant Association says.

The final rules apply to restaurants and similar retail food establishments that are part of a chain of 20 or more outlets, conducting business under the same name and offering substantially the same menu items. Those operations covered by the law must clearly and conspicuously display calorie information for standard items on menus, menu boards and drive-thru displays adjacent to the name or price of the item. That includes self-service, buffet and cafeteria lines.

Total calories, calories from fat, total fat, saturated fat, trans fat, cholesterol, sodium, total carbohydrate, dietary fiber, sugar and protein content may be provided by counter card, sign, poster, handout, booklet, loose leaf binder, menu or electronic device or by other similar means.

In states and local jurisdictions that already have enacted regulations encompassing smaller chains operating between five and 19 locations, those operations are still subject to local laws unless they choose to opt into the federal requirement.

Seasonal menu items offered as temporary selections, daily specials and condiments for general use usually available on a counter or table are exempt from the labeling requirements.


Making educated choices

With Americans receiving an estimated 30 percent of their calories from food consumed away-from-home, menu labeling proponents maintain that making calorie information available on chain menus and other establishments would enable consumers to make more educated choices about the food they order in restaurants.

"It's important for restaurateurs to provide this information because we believe consumers want it. They want transparency about food they're eating and its nutrition content," says Cicely Simpson, executive vice president of public affairs for the National Restaurant Association. [The federal regulations] provide one uniform standard that will give consumers the information they need to make informed decisions."

The enactment of the menu labeling rules reflects a more sweeping trend toward providing increased nutrition information in general. 

“Consumers have had access to nutrition information on packaged foods sold at retail since 1992 when Congress passed the Nutrition Labeling and Education Act, which mandated Nutrition Facts panels on all packaged foods,” says Amy Myrdal Miller, founder and president of Farmer's Daughter Consulting in Carmichael, Calif. “Having access to nutrition information has been shown to have some impact on consumers making better food and beverage choices. With increasing rates of obesity in this country, public health officials pushed Congress to mandate this information be provided in restaurants and other settings selling prepared foods.”

According to research conducted by the U.K.-based Cochrane Collaboration, diners choose meals that contain between 8 percent and 12 percent fewer calories when menus include information about calorie counts.


Seeking “clean labels”

As the movement toward offering ingredient transparency and “clean labels” gains traction across the food and foodservice industries, lawmakers are seeking to address these issues by framing regulations that will aid consumers in making their choices.

Among other actions, lawmakers at the federal, state and municipal levels have introduced policies that would require the identification of food products made with genetically modified organisms (GMOs), call for the posting of voluntary guidelines for sodium consumption, and revamp the nutrition facts panel on retail food products.


Possible changes?

In the meantime, the foodservice industry has been gearing up to comply with the new FDA rules — although the House bill, if enacted, could mandate some alterations to the menu labeling landscape. According to Jones-Mueller, under the House rules restaurants with pizza, sandwiches and other items that are available in hundreds of iterations would be allowed to post the information in a variety of ways, including displaying a range or average rather than each specific variation. In addition, calories and other nutrition information can be presented on websites and/or mobile apps if the majority of a chain's orders are placed online. 

Also, restaurants will have 90 days to correct inaccurate information instead of receiving a fine or other penalty with the first violation.

While there is support within the industry for the changes in the House bill, there also has been some pushback. 


Business unfriendly

“This is a maddening situation for the restaurant industry,” says Myrdal-Miller. “All of the big players worked furiously to attempt to meet the initial deadline of May 5, 2017. They invested significant time and a lot of money to meet the regulations initially proposed, and the industry worked closely with the FDA to more clearly define the 'fuzzy' areas of labeling, including alcoholic beverages, limited time offers and customization of menu items with limitless options — such as pizza. Any changes now that put additional pressure on the industry are unwarranted and unfriendly to business.”

The future of the bill remains uncertain as it is unknown whether the Senate will even bring it up for a vote. The NRA's Simpson points out that this marks the second time the House has passed the bill, “and the Senate hasn't taken it up yet.”

In the meantime, operators should plan to be in compliance with the FDA rules on May 7 — even if there still exists the possibility for some sort of delay. “Will menu labeling be delayed again? Possibly,” writes Jones-Mueller. “Will menu labeling be overturned completely? Highly unlikely.

“There is no doubt that the FDA will require restaurants with 20 or more U.S. locations to provide accurate nutrition information,” she says. “The only question at this point is how the nutrients must be presented. So most important is to make sure that you have complete — and accurate — nutrition information for the 11 required nutrients.”



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