The Food and Drug Administration issued guidance for chain restaurants that must comply with the health care reform law to post the calorie content of their menu items at the point of purchase.

Section 4205 of the Patient Protection and Affordable Health Care Act amended the Food, Drug, and Cosmetic Act to add new labeling requirements for chain restaurants with 20 or more locations doing business under the same name and offering substantially the same menu items. The law applies to menus and menu boards, including drive-through menu boards and self-service food, such as vending machines and salad bars.

Under the law, food retailers must declare the number of calories each standard menu item provides as it is typically prepared, and must present the required calorie information in terms of suggested caloric intake in the context of an overall diet.

The preliminary draft was released August 24 by the Office of Nutrition, Labeling, and Dietary Supplements in the Center for Food Safety and Applied Nutrition at the FDA.

The question-and-answer-style guidance clarifies some issues, noting that Internet and take-out menus are covered under the law if they are used as “the primary writing from which a consumer makes a selection,” and defining “custom orders” (an order prepared specifically for an individual customer, such as a Cobb salad without the bacon) which aren’t covered under the law. The FDA is still seeking comment on several issues, however.

While the law clearly applies to grocery stores with cafes and food courts, the agency noted that some grocery stores without in-store restaurants may still have “facilities that offer foods that could be consumed immediately or could be purchased as traditional grocery items for future consumption, such as in-store bakeries, salad bars, pizza bars, or delicatessens.” The FDA is seeking comment on the types of facilities that should be included for grocery stores as well as convenience stores.

The agency is also seeking comment on whether disclosure of nutrient content information will be required for “variable menu items,” such as pizzas prepared based on the toppings listed on the menu.

To read the draft guidance, click here.

Why it matters: In addition to the issues on which the agency is seeking comment, the FDA indicated that it will be making further tweaks to the guidance. It declined to require a succinct statement of suggested daily caloric intake until the final rule is issued. The agency also noted it does not plan to begin enforcement immediately upon the issuance of final guidance. The “industry may need additional guidance from FDA and time to comply with the provisions of section 4205,” the FDA noted, and said it plans to refrain from initiating enforcement action. The agency also asked for comments on when the appropriate time period for enforcement after the issuance of final guidance should begin, anticipating issuing final guidance in December 2010.