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On November 25, 2014, the Food and Drug Administration (FDA) released final regulations implementing nutrition labeling requirements for retail food establishments.  The regulations implement Section 4205 from the Patient Protection and Affordable Care Act, which requires chain restaurants and similar retail food establishments to provide consumers with more nutrition information.  From an advertising perspective, the regulation is important, because it potentially imposes mandatory disclosures on in-restaurant communications that might be conisdered promotional in nature.  Compliance with the restaurant labeling regulation begins December 1, 2015.

Labeling Requirements for Restaurants and Similar Retail Food Establishments

  • The menu labeling regulation applies to restaurants and “similar retail food establishments” if they are: part of a chain of 20 or more locations, doing business under the same name, and offering for sale substantially the same menu items.
  • Restaurants and “similar retail food establishments” are defined as entities serving “restaurant type food” including bakeries, cafeterias, coffee shops, convenience stores, grocery stories, and food service facilities located within entertainment venues (e.g. movie theatres).  The term “restaurant type food” encompasses food typically eaten either on the retail premises, while walking away from the premises, or soon after arriving at another location.
  • Importantly, FDA decided to include most food service establishments located within other retail or entertainment venues within the scope of the rule (such as bookstores and movie theatres) after receiving a number of comments disfavoring a more complicated approach that would have only subjected such establishments to the requirements of the rule if the primary business activity of the retail or entertainment venue is to sell food.
  • Entities subject to the menu labeling regulation must list: calorie information and the statement “2,000 calories a day is used for general nutrition advice, but calorie needs vary” for standard menu items and menu boards.
  • Covered entities must make available, on request, nutrition information about total calories, total fat, calories from fat, saturated fat, trans fat, cholesterol, sodium, total carbohydrates, fiber, sugars, and protein.

FDA has defined “Menu” or Menu Board” as “the primary writing of the covered establishment from which a customer makes an order selection, including, but not limited to, breakfast, lunch, and dinner menus; dessert menus; beverage menus; children’s menus; other specialty menus; electronic menus; and menus on the Internet.”  Accordingly, items that feature signigicant promotional components, including internet promotions, may nevertheless be considered to be “menus” and therefore subject to the affirmative requirements of the regulations.