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Can Diners Determine Calories and Nutrition on Your Menu? FDA Flexibility is Ending

Consumers often rely on the caloric and nutrition information on restaurant menus for determining how an offering fits into their daily diet, but during the COVID-19 public health emergency, FDA provided temporary guidance that allowed for flexibility in the regulation requiring that restaurants provide that information (section 403(q)(5)(H) of the FD&C Act).

Now, as TAG reported in our April 11 Insights article, FDA is terminating a number of temporary guidances that were intended to help address industry issues of the pandemic. With the public health emergency scheduled to end on May 11, 2023, some guidances will end immediately, while others are extended – including the menu labeling flexibility, which now expires November 7, 2023.

So what was required by the regulation that will again be enforced? In short, restaurant chains with 20 or more locations (of the same name) are to label standard menu items in menus, on menu boards, and on point-of-sale materials with caloric information; and other nutrition information is to be available in writing upon request.

Specifically, these restaurants are to:

  • Include a nutrient content disclosure statement with the number of calories in each standard menu item as usually prepared, placed adjacent to the name of the item (so as to be clearly associated with the item) on the menu/menu board, including those of drive-throughs.
  • Prominently post on the menu a succinct statement concerning suggested daily caloric intake as specified by regulation that is designed to enable the public to understand, in the context of a total daily diet, the significance of the caloric information that is provided on the menu (e.g., “2,000 calories a day is used for general nutrition advice, but calorie needs vary”).
  • Disclose calorie information on display and self-service foods that are standard menu items, on signs adjacent to the foods.
  • Provide additional nutrition information, in a written form, that is available on the premises and to the consumer upon request. An availability statement is to be disclosed on the menu or menu board in a prominent, clear, and conspicuous statement (e.g., “Additional nutrition information available upon request”).

With a goal of helping these restaurant establishments address temporary business practice changes resulting from COVID-19, FDA did not intend to object if the menu labeling requirements were not met while the public health emergency meeting was on. However, the agency did encourage covered establishments to continue to comply with the menu labeling requirements as much as they possibly could.

As is now becoming clear with the expiring flexibility, those establishments that continued to comply, or work toward compliance, are in a good position to be prepared for November. If your establishment was not able to maintain this labeling compliance, it’s critical to start now. Take a fresh look now at your menus, along with your food offerings and their ingredients:

  • Do you have calorie content for each of your standard menu items listed adjacent to each item, or could consumers be confused about which item is being referenced?
  • Is this information included with display and self-service foods, as well as on drive-through menus?
  • Do you include a succinct statement on daily caloric intake and availability of additional information?
  • Did your supplier and/or ingredients change during or since COVID to the extent that your menu labeling would no longer be accurate?
  • Were there other changes that could impact the accuracy of your caloric or nutrition labeling?

The pandemic had a significant impact on the food supply chain; and many businesses, particularly those that are furthest downstream, are continuing to feel the impacts. It is, in all likelihood, for those very reasons that FDA is providing these establishments with an extra six months to ensure compliance. It’s now up to you to take full advantage of that and do a complete review of your foods and your menus. You may even discover other supply changes that had slipped through the cracks in the midst of the upheaval! If you do, or if you simply find yourself needing any assistance, give TAG a call. We can help!


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