New Legislation Seeks to Amend Menu Labeling Requirements

By Riëtte van Laack –

The Patient Protection and Affordable Care Act of 2010, in part, amended the FDC Act by adding Section 403(q)(H) requiring restaurants and similar retail food establishments (“SRFEs”) that are part of a chain with 20 or more locations to provide calorie and other nutrition information for standard menu items. 

Last year, FDA issued proposed rules (here and here) implementing the new legal requirements.  The new law and FDA’s proposed regulations have generated many comments and questions.  Major issues with the proposed regulation include the meaning of “menu” and the related requirement to provide nutritional information in establishments where consumers are not usually physically present when ordering items, the application of the law to grocery stores which may sell store-prepared food items, and the listing of calories for multi-serving foods, e.g., for an entire pizza rather than per slice (see our previous post here).

On July 24, Rep. John Carter (R-TX) introduced the Common Sense Nutrition Disclosure Act of 2012 (H.R. 6174) to amend the menu labeling provisions.  The amendment would allow delivery and take-out restaurants to post calorie (and other nutritional) information on the establishment's website rather than in their establishments and allow the listing of calories for multi-serving foods per serving or per common unit in which the food is usually divided.  In addition, the Bill includes a provision that providing various alternatives for disclosing nutrient content of standard menu items that come in different flavors, varieties or combinations.  As amended, the FDC Act would allow presentation of nutritional information for such products in ranges, averages, individual labeling of flavors or components, labeling of one preset standard build, or other methods as determined by FDA. 

H.R. 6174 also redefines the “reasonable basis” for a restaurant’s or SRFE’s nutrient disclosures to allow for variation in nutrient content related to variations in serving size, inadvertent human error in formulation of menu items, and variation in ingredients.  The bill further defines “restaurant or SRFE” as a retail food establishment that derives more than 50 percent of its total revenue from the sale of food, thereby resolving the uncertainty about what establishments are subject to the new requirements.