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On November 25, 2014, the U.S. Food and Drug Administration finalized two rules requiring that calorie information be listed on menus and menu boards in chain restaurants, similar retail food establishments, and vending machines with 20 or more locations to provide consumers with more nutritional information about the foods they eat outside of the home. The rules were enacted to implement the nutrition labeling provisions of the 2010 Patient Protection and Affordable Care Act (Section 4205). Covered establishments must comply with the rules on or before December 1, 2015.

According to a U.S. Food and Drug Administration report, about half of consumers’ annual food dollars are spent on, and a third of total calories come from, foods prepared outside the home, including foods from restaurants and similar retail food establishments. The new rules are intended to help make nutrition information available to consumers in a consistent and direct manner.

The menu labeling final rule 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 (chain retail food establishment). This rule applies to franchisees (the rule disregards the type of ownership of the locations). Covered food establishments will be required to clearly and conspicuously display 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.

Restaurants and similar retail food establishments include bakeries, cafeterias, coffee shops, convenience stores, delicatessens, food service facilities located within entertainment venues (such as amusement parks, bowling alleys and movie theaters), food service vendors (such as ice cream shops and mall cookie counters), food take-out and/or delivery establishments (such as pizza take-out and delivery establishments), grocery stores, retail confectionary stores, superstores, quick service restaurants, and table service restaurants. Schools, trains and airplanes are not covered by the new rules. In addition, the following types of food are not considered to be “restaurant type” foods:

  1. Certain foods bought from bulk bins or cases in grocery stores (such as dried fruits or nuts);
  2. Foods to be eaten over several eating occasions or stored for later use (such as loaves of bread, bags of dinner roles, whole cakes, and bags of candy);
  3. Foods that are usually further prepared before consuming (such as cheeses); and
  4. Foods sold by weight that are not self-serve and are not intended solely for individual consumption (such as potato salad).

A restaurant or similar retail food establishment not covered by the new rules may choose to be covered by the new rules by registering with the FDA using a process set forth in the rules.

In addition, the menu labeling final rule now includes certain alcoholic beverages served in covered food establishments and listed on the menu. The rule exempts bottles of liquor behind the bar used to prepare mixed drinks. The majority of the public comments to the proposed final rule supported including alcohol because of the impact on public health.

To help consumers understand the significance of the calorie information in the context of a total daily diet, under the rule, menus and menu boards will include the statement: “2,000 calories a day is used for general nutrition advice, but calorie needs vary.” For menus and menu boards directed at children, the following options may be used as a substitute or addition to the foregoing statement: “1,200 to 1,400 calories a day is used for general nutrition advice for children 4 to 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 to 8 and 1,400 to 2,000 calories a day for children 9 to 13 years, but calorie needs vary.” The menu labeling final rule also requires 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.

The vending machine final rule requires 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 (December 1, 2016).

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