Among the myriad of reforms contained in the newly passed healthcare legislation (Patient Protection and Affordable Care Act H.R. 3590), which was signed into law this past March, is a menu labeling provision which will standardize—on a national level—how the restaurant industry discloses nutritional information. While nutrition labeling requirements were passed almost twenty years ago for packaged foods, there was no national menu labeling standard for prepared foods until now. The recently enacted legislation combines key elements of the Menu Education and Labeling (MEAL) Act and the Labeling Education and Nutrition (LEAN) Act, both of which were introduced and reintroduced in prior congressional sessions. Faced with a national obesity problem—where more than 60% of American adults and 30% of American children suffer from obesity—this portion of the healthcare legislation enjoyed widespread support. In addition to a bipartisan group of House and Senate members, the legislation was supported by health and consumer advocates and industry groups such as the National Restaurant Association, the National Council of Chain Restaurants, and the International Franchise Association. As a national standard, the legislation will replace a growing and often inconsistent patchwork of state and local regulations, which have been enacted most notably in California and New York City.
The new legislation targets chain restaurants, with 20 or more locations offering standard menu items, as well as vending machines operators owning or operating 20 or more vending machines. Other restaurants or vending machine operators may elect to be subject to the requirements by registering biannually with the U.S. Food and Drug Administration. Although not required, some consumer advocate groups have speculated that smaller chains or independent restaurant operators will voluntarily elect to be subject to the menu labeling requirements for marketing purposes and to satisfy higher consumer expectations. In addition, voluntary registration may afford such restaurants and operators the protections that may be contained in the future regulations promulgated by the U.S. Food and Drug Administration. Under the new legislation the following will be required:
- Menus, drive-thru menu boards, brochures and buffets must contain a nutrient content disclosure statement listing, at minimum, caloric values for standard menu offerings.
- Menus, drive-thru menu boards, brochures and buffets must display a statement concerning suggested daily caloric intake, as specified by the U.S. Food and Drug Administration, to provide context for the consumer with regard to the calorie disclosure for each food item on the menu.
- The labeling requirements do not apply to condiments, daily specials, temporary menu items, special orders and customary market testing items, provided they appear on menus for limited time periods, as more specifically set forth in the legislation.
The U.S. Food and Drug Administration is tasked with proposing regulations within one year to implement the legislation through a formal rulemaking process. Such regulations are likely to require disclosure of other information to assist consumers in maintaining healthy dietary practices, including disclosure of information similar to that required on packaged foods, such as fat, sodium and cholesterol.
Many experts in the foodservice industry suspect that the legislation will have an impact not only on the chain restaurants that are the primary focus of the reforms, but also smaller chains and independent restaurants. As consumers become more savvy and accustomed to seeing the nutrition labeling at the chain restaurants, they will grow to expect the same disclosures at all restaurants. Restaurants will need to be careful in their disclosures to avoid consumer litigation for fraud or deceptive marketing. Consulting experts who specialize in nutrient analysis will become a necessity. In addition, carefully drafted disclaimers will become critical to protect restaurant owners from lawsuits arising from discrepancies between actual nutrient content and disclosed nutrient content.
We will continue to monitor the quarterly reports that the U.S. Food and Drug Administration are required to make to Congress and await the regulations that will be promulgated no later than March 2011. Those who support the legislation the menu labeling legislation proclaim that it is a victory not only for the American consumer, but also for the foodservice industry. American consumers will be provided the information they need to maintain a healthier lifestyle and the legislation levels the playing field for the foodservice industry.
Click here to view this Client Alert as a PDF.
This Client Alert has been prepared by Lewis and Roca LLP for informational purposes only and is not legal advice. Readers should seek professional legal advice on matters involving these issues.