Today, the FDA today announced its long-awaited final rules on menu and vending machine calorie labeling. Specifically, it issued two rules requiring that calorie information be listed on (1) menus and menu boards in chain restaurants and similar retail food establishments, and (2) articles of food in vending machines. The rules are required by the 2010 Patient Protection and Affordable Care Act.
The first rule generally provides that the number of calories contained in each standard menu item must be provided on the menu or menu board, as usually prepared and offered for sale. Additional rules provide how to, among other things, label “variable menu items” and “combination meals.” See § 101.11(b)(4)-(7).
The rule applies to any “restaurant or similar retail food establishment that is a part of a chain with 20 or more locations doing business under the same name (regardless of the type of ownership, e.g., individual franchises) and offering for sale substantially the same menu items, as well as a restaurant or similar retail food establishment that is registered to be covered under paragraph (d) of this section.”
The reference to paragraph (d) relates to a provision under which any restaurant may voluntarily register to be subject to the rules with the benefit of not being “subject to non-identical State or local nutrition labeling requirements.”
In its comments, the FDA elaborates on what qualifies as a “restaurant or similar retail food establishment”:
Restaurants and similar retail food establishments include bakeries, cafeterias, coffee shops, convenience stores, delicatessens, food service facilities located within entertainment venues (such as amusement parks, bowling alleys, and movie theaters), food service vendors (e.g., ice cream shops and mall cookie counters), food take-out and/or delivery establishments (such as pizza take-out and delivery establishments), grocery stores, retail confectionary stores, superstores, quick service restaurants, and table service restaurants.
As it states, the rule applies to standard menu items. In this regard, the rule specifically exlcudes “(1) Items such as condiments that are for general use, including those placed on the table or on or behind the counter; daily specials; temporary menu items; custom orders; food that is part of a customary market test; and (2) Self-service food and food on display that is offered for sale for less than a total of 60 days per calendar year or fewer than 90 consecutive days in order to test consumer acceptance.”