Food retailers beware – the health care reform bill signed into law by President Barack Obama last month includes new labeling requirements and caloric disclosures for restaurants.
Section 4205 of the Patient Protection and Affordable Care Act amends 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. Food retailers with fewer than 20 locations are exempt but can choose to opt in to the requirements.
The law applies to menus and menu boards, including drive-through menu boards and self-service food, such as vending machines or 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.
Further, the calorie information must be adjacent to the name of the standard menu item as it is usually prepared and placed on the actual menu or menu board, including a drive-through menu board. It must also be in written form, available on the premises upon consumer request, and include nutrition information currently required on packaged food labels, such as the number of calories, total fat, saturated fat, sugars, cholesterol, fiber, and protein, on a per-serving basis.
Certain items are excluded, such as daily specials, condiments, and temporary menu items, such as test market items or seasonal items.
For vending machines, if an article of food that is sold does not allow a consumer to examine the nutrition label prior to purchase, the operator of the machine must provide a sign in close proximity to each food item or its selection button that includes a statement disclosing the number of calories in the item.
Why it matters: The new law will provide some clarification for restaurant owners, as it expressly preempts state and local rules unless they are more stringent than the Act (for example, New York City requires restaurants with 15 or more outlets to post nutritional information, less than the 20 locales required under the new federal law). However, some aspects of the law remain vague. The definition of “or similar retail food establishment” is unclear, and could apply to food distributors or large chains – such as gas stations with a self-service deli or grocery stores with a salad bar – with 20 or more locations. Another wrinkle: The law requires that the food establishments have a “reasonable basis” for their nutrient information, but does not include a standard by which to calculate. Clarification falls to the FDA, which is required under the law to propose specific regulations within one year. The process could take longer, and it is unknown when the new requirements will actually take effect.