FDA Issues Final Regulations on Food Menu and Vending Machine Labeling

On December 1, 2014, the US Food and Drug Administration (FDA) issued final regulations requiring that calorie information be listed on menus and menu boards in chain restaurants, and retail food establishments, and final regulations governing mandatory calorie declaration on food sold in vending machines. The regulations, which were promulgated under the authority of the 2010 Patient Protection and Affordable Care Act, are intended to provide consumers with more nutritional information about the foods they eat outside of the home.

The menu labeling regulations apply to restaurants and retail food establishments if they (1) are part of a chain of 20 or more locations; (2) are businesses under the same name; and (3) offer for sale substantially the same menu items. The regulations require the clear and conspicuous display of calorie information for standard items on menus and menu boards, next to the name or price of the item. Seasonal menu items offered for sale as temporary menu items, daily specials, and condiments for general use typically available on a counter or table are exempt from the labeling requirements.

The final menu labeling regulation defines “restaurant-type food” as food that is:

“(i) usually eaten on the premises, while walking away, or soon after arriving at another location; and (ii) either: (a) served in restaurants or other establishments in which food is served for immediate consumption or which is sold for sale or use in such establishments; or (b) processed and prepared primarily in a retail establishment, ready for human consumption, of the type … offered for sale to consumers but not for immediate human consumption in such establishment and which is not offered for sale outside such establishment.”

In part, the label requirements are expected to apply to bakeries, bowling alleys, grocery stores, movie theatres, amusement parks, and convenience stores when such establishments are part of a chain with 20 or more locations doing business under the same name.

The final menu labeling regulation includes a number of changes from the proposed rule. For example, the final regulation requires calorie disclosures for alcoholic beverages listed on menus, but provides flexibility in how establishments meet this provision. The majority of comments submitted to the FDA supported including alcoholic beverages because of the impact on public health. In addition, the final menu labeling rule now includes within its scope food facilities in entertainment venue chains, such as movie theaters and amusement parks.

The menu labeling regulations also require covered establishments to provide, upon consumer request and as noted on menus and menu boards, written nutrition information about total calories, total fat, calories from fat, saturated fat, trans fat, cholesterol, sodium, total carbohydrates, fiber, sugars, and protein. Restaurants and similar retail food establishments will have one year to comply with the menu labeling requirements.

The new vending machine regulations require operators who own or operate 20 or more vending machines to disclose calorie information for food sold from vending machines, subject to certain exceptions. Vending machine operators will have two years to comply with the requirements.

The public comment period for the final regulations closes on December 31, 2014. Please let us know if you have any questions concerning the final menu labeling and vending machine labeling regulations. Links to the final regulations follow here and here.