Certain restaurant owners have less than two months to comply with a new Food and Drug Administration (“FDA”) regulation. On December 1, 2014, the Food and Drug Administration (“FDA”) published a final rule requiring that qualifying establishments — such as restaurants, grocery stores, and coffee shops — list on their menus the calories of regularly sold food items. The deadline for qualifying restaurants to comply with this rule is now May 7, 2018. While some states had already created their own forms of menu labeling, and many chain restaurants had previously voluntarily published the calories for each regular menu item, the new rule will require that every large food and restaurant chain follow suit.

At a time when consumer consciousness of nutritional information has never been higher, the new rule brings food labeling requirements for qualifying restaurants in line with the labeling requirements governing packaged foods. The FDA has acknowledged the importance of bringing calorie-labeling requirements to restaurants and other food vendors to improve the awareness and health of the consuming public: as FDA Commissioner Scott Gottlieb said late last year, “Information about the foods we get in restaurants and in take-out meals isn’t consistently available. Often we’re left without good insight into how many calories we’re consuming away from our homes, or what type of nutrition we may receive. At a time when more than a third of U.S. adults are obese and more people are trying to make healthier lifestyle decisions, we know making informed choices about our diets has the potential to save and improve lives.” Since consumers will now be able to take calorie content into account before making their menu selection, it will be critical for restaurants to evaluate whether the demand for particular menu items increases or decreases compared to historical averages.

What does the Rule Require?

This rule requires that certain restaurants (as detailed below) disclose calorie information on menus (and menu boards) for standard food items to allow consumers to make more informed and healthy choices. In addition, qualifying restaurants must post on menus and menu boards (1) a succinct statement concerning suggested daily caloric intake; and (2) a statement that written nutrition information (including total calories, calories from fat, total fat, saturated fat, trans fat, cholesterol, sodium, total carbohydrates, fiber, sugars, and protein) is available upon request.

Who is Required to Comply?

All restaurant chains with 20 or more locations, all of which are doing business under the same name and offer substantially the same menu items for sale, are required to comply with the new calorie-labeling requirement. The FDA explicitly stated that the following establishments are included in the definition: “quick service and/or sit-down, food take-out facilities, pizza delivery establishments, food facilities in entertainment venues (e.g., movie theaters, bowling alleys), cafeterias, coffee shops, superstores, grocery and convenience stores.” Vending machine operators who own 20 or more vending machines must also provide calorie amounts for each item sold in that particular vending machine. This information can be placed on a sign close to the particular food item or adjacent to the vending machine, so long as the calorie declaration is visible at the same time as the food, its name, price, selection button, or selection.