What Chain Restaurants and Vending Machine Operators Need to Know About New Federal Law Requiring Nutritional Disclosure on Menu and Menu-Boards

Jun 08, 2010   

New legislation is changing the way chain restaurants and vending machine operators do business. On March 23, 2010, President Obama signed into law the Patient Protection and Affordable Care Act (“PPACA”). The PPACA includes a provision that requires certain chain restaurants and vending machine operators to disclose some nutritional information on the foods and beverages they market and sell. This nutrition disclosure provision, Section 4205 of the PPACA, amends the Federal Food Drug and Cosmetic Act (“FDCA”) by specifically inserting a new subclause (H) into Section 403(q)(5) of the FDCA.

Nutritional Disclosure Requirements

Chain Restaurants:

The nutritional disclosure requirements apply to restaurants and similar retail food establishments that is part of a chain with 20 or more locations doing business under the same name and offering substantially the same menu. These chain restaurants must disclose in a “clear and conspicuous manner” the following required nutritional information on menus and menu boards, including drive-through menus:

¢ The number of calories contained in the standard menu item as usually prepared and offered for sale. The calorie disclosure statement must be adjacent to the name of the standard menu item and clearly associated with the standard menu item.

¢ A suggested daily caloric intake statement posted prominently on the menu, menu board, including drive-through menus, that is designed to enable the public to understand the context and significance of the calorie information posted on the menus and menu boards.

In addition, the menu or menu board must inform consumers that the above required calorie count and suggested daily caloric intake statement, as well as the nutritional information normally found on the Nutrition Facts Panel on packaged food is available in written form on the restaurants premises.

Vending Machines:

A vending machine operator who owns or operates 20 or more vending machines must comply with the applicable nutritional disclosure requirements. The law requires that if the vending machine does not provide visible nutritional information, such as the Nutrition Facts Panel, before purchasing, then the vending machine operator shall provide a sign in close proximity to each article of food or the selection button that includes a clear and conspicuous statement disclosing the number of calories contained in the food or beverage.

Self-Service Food and Food on Display:
The nutritional disclosure provision requires that food sold at a salad bar, buffet line, and cafeteria line, as well as self-service beverages or food that is on display and is visible to customers must place a sign next to each food offered that lists calories per displayed food item or per serving.

Exceptions:

The nutritional disclosure requirements do not apply to the following:

¢ Items that are not listed on a menu or menu board (such as condiments);
¢ Daily specials;
¢ Temporary menu items appearing on the menu for less than 60 days per calendar year;
¢ Custom orders; or
¢ Such other food that is part of a customary market test appearing on the menu for less than 90 days.

Reasonable Basis for Nutrient Content

Restaurants are given some flexibility in determining the calorie count information included on their menus, menu boards, and written information. The restaurant must have a “reasonable basis” for the nutrient content disclosures, including nutrient databases, laboratory analysis, and other reasonable means. This flexibility protects the restaurants from the unavoidable variation found any given serving.

Menu Variability and Combination Meals

The Secretary of the Department of Health and Human Services (HHS), through the U.S. Food and Drug Administration (FDA), shall determine how nutrient content for standard menu items that come in different flavors, varieties, or combinations, but that are listed as a single menu item (for example, pizza, ice cream, soft drinks, and doughnuts) are to be disclosed and labeled.

Regulatory Power to Expand Disclosure Requirements

The law provides that the federal regulators may expand the nutrient disclosure requirements to include additional nutrients if doing so would assist consumers in maintaining healthy dietary practices.

Federal Preemption

Many states and local governments have already adopted their own nutritional disclosure laws. This federal nutritional disclosure law preempts state and local menu-labeling requirements that are not identical to the federal menu-labeling requirements. Note, however, that the federal law does not preempt state and local requirements for food labels that provide a warning concerning the safety of the food or food component.

Voluntary Compliance

Restaurants and vending machine operators who are exempt from these requirements may elect to voluntarily provide the nutritional data. Those who wish to voluntarily comply with the program may register with the FDA and meet the program requirements. The Secretary of HHS is required to publish within 120 days of enactment the terms by which restaurants and vending machine operators may voluntarily provide nutritional information.

Compliance Date

Chain restaurants and vending machine operators that are subject to the new law are not required to comply with the requirements until the Secretary of HHS finalizes and implements the regulations. The law requires the Secretary of HHS to publish proposed regulations within one year of the laws enactment date of March 23, 2010. Therefore, while the new law takes effect immediately, retailers do not have to take mandatory action until the rules are further clarified.

Fuerst Ittleman will continue to monitor the Secretary of HHS and the FDA for proposed rulemaking concerning this new law. If you are an owner or operator of a restaurant, vending machine, self-service food restaurant, gas station franchise, or large food distributor who services 20 or more corporate or school cafeterias with the same food products, please contact us at (305) 350-5690 or contact@fidjlaw.com to determine how this new federal law may impact your business.