FDA Proposes Draft Menu and Vending Machine Labeling Requirements

Consumers would see calories listed in restaurants and similar retail food establishments that are part of a chain with 20 or more locations doing business under the same name and offering for sale substantially the same menu items.

4/4/2011 --- The U.S. Food and Drug Administration has issued two proposed regulations regarding calorie labeling on menus and menu boards in chain restaurants, retail food establishments, and vending machines.

“These proposals will ensure that consumers have more information when they make their own food choices,” said Department of Health and Human Services Secretary Kathleen Sebelius. “Giving consumers clear nutritional information makes it easier for them to choose healthier options that can help fight obesity and make us all healthier.”

The menu labeling rule proposed applies to chain restaurants and similar retail food establishments. Specifically, consumers would see calories listed in restaurants and similar retail food establishments that are part of a chain with 20 or more locations doing business under the same name and offering for sale substantially the same menu items. Examples of these establishments include fast food establishments, bakeries, coffee shops and certain grocery and convenience stores. Movie theaters, airplanes, bowling alleys, and other establishments whose primary purpose is not to sell food would not be subject to this proposed regulation. Additionally, the proposal invites the public to comment on whether additional types of food establishments should or should not be covered by the new rule. A companion rule proposes calorie posting for food sold in vending machines. The FDA is accepting comments on both proposed rules.

“Americans now consume about one-third of their total calories on foods prepared outside the home,” said FDA Commissioner Margaret A. Hamburg, M.D. “While consumers can find calorie and other nutrition information on most packaged foods, it's not generally available in restaurants or similar retail establishments. This proposal is aimed at giving consumers consistent and easy-to-understand nutrition information.”

The Affordable Care Act requires the disclosure of calorie and other nutrition information in certain food establishments and for certain foods sold in vending machines. Additionally, on menus and menu boards, statements would be posted concerning suggested daily calorie intake and indicating that additional nutrition information is available on request. Under the proposal, this information would be displayed clearly and prominently on menus and menu boards, including menu boards in drive-through locations; and for individual foods on display. Consistent with the law, the agency is proposing that the following statement on daily caloric intake be on menus and menu boards to help consumers understand the significance of the calorie information in the context of a total daily diet:

“A 2,000 calorie diet is used as the basis for general nutrition advice;
however, individual calorie needs may vary.”

Under the proposed rules, operators who own or operate 20 or more vending machines would post calorie information for food sold in a vending machine, unless certain nutrition information is already visible on individual packages of food inside the machine.

State and local governments could not impose any different nutrition labeling requirements for food sold in restaurants, similar retail food establishments, and vending machines covered by the Federal requirements. Restaurants, similar retail food establishments, and vending machine operators that are not covered by the Federal requirements could voluntarily register to be covered under the Federal nutrition labeling regulations.

The FDA is seeking public comment on the proposed rule for menu labeling for 60 days (until 06-06-2011). Comments on the proposed rule on vending machines may be submitted for 90 days (until 07-05-2011). The FDA plans to issue final rules before the end of 2011.

The Center for Science in the Public Interest said it strongly supports the proposed menu labeling regulations released by the Food and Drug Administration.

The new regulations are required by the health care reform law enacted last March, which requires chain restaurants with 20 or more outlets to post calories on menus and menu boards, and to provide additional nutrition information in writing upon request. The proposed rules released today are expected to be finalized by the end of the year.

"A number of things contribute to obesity, but studies show that eating out is linked to higher calorie intakes and higher body weights," said CSPI nutrition policy director Margo Wootan. "Without nutrition information, how are people supposed to know that some salads have more calories than some burgers? Or that some ‘appetizers’ pack a thousand or more calories?"

Studies show that providing nutrition information for packaged foods and restaurant foods has a positive influence on food-purchase decisions. While a few recent studies have found no effect, small studies lack enough statistical power to measure the public health effect that can be expected from menu labeling.

One of the best studies was conducted by researchers at Stanford University. They found that menu labeling in New York City resulted in a 6 percent decrease in calories on average per transaction (for people buying more calories, the effect was bigger, a 26 percent decrease) at Starbucks. The researchers estimated that if people made similar changes at other chain restaurants, that would result in a 30-calorie per person per day decrease population-wide. "That is an important finding given that the obesity epidemic is probably fueled by about an extra 100 calories per person per day." Wootan said.

Menu labeling laws have been passed in 18 states, cities, and counties and are in effect in Vermont, California, New York City, Philadelphia, and King County, Wash. As a result of the laws that have been implemented, many restaurants, including Starbucks, Dunkin Donuts, Taco Bell, Uno Chicago Grill, Romano’s Macaroni Grill, and others have reformulated menu items or added new lower-calorie choices, CSPI claims.

CSPI reported that it is disappointed that the proposed regulations excluded movie theaters and alcohol from the proposed menu labeling regulations, but will press the FDA to include them in the final regulation.

"If a movie theater is going to serve up thousand-calorie tubs of popcorn, 400-calorie drinks, and 400-calorie boxes of candy, the least they could do is tell you about it," Wootan said. "Also, it will be confusing to customers if soft drinks are labeled on menus, but alcoholic drinks like beer and wine aren’t."