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Who is Affected By New Menu Labeling Rules?

According to the U.S. Food and Drug Administration (FDA), many consumers use nutrition information found on packaged foods to make their food choices.  Nutrition information, like that found on packaged foods, is not currently available at many restaurants and other retail food establishments.  Thus, the goal of the new menu labeling regulations is to provide consumers that are dining out with the information necessary for them to make wise food choices.

Last week the FDA released their proposed rules to implement the menu labeling provisions of the Patient Protection and Affordable Care Act of 2010.  The proposed rules, released in two separate documents are entitled, “Food labeling: Nutrition labeling of standard menu items in restaurants and similar retail food establishments,” and “Food labeling: Calorie labeling of articles of food in vending machines”. Today we will look at the first document and cover exactly what kind of establishments are covered by these new rules.

The new law applies to “restaurants or similar retail food establishments that are part of a chain with 20 or more locations doing business under the same name (regardless of ownership) and offering for sale substantially the same menu items” . These establishments must provide nutrition information to patrons. Restaurants or similar retail establishments with less than 20 locations may volunteer to be subject to these rules by registering with the FDA.

Since these documents are not the final version of the rules, the FDA seeks comment from the public in defining key terms and establishing solid criteria for evaluating restaurants and other food service establishments. For example: the FDA requests comment on their definitions of the terms “covered establishments”, “chain”,” location”, and the phrase “part of a chain with 20 or more locations”.

The FDA recognizes that the phrase “restaurants and similar retail food establishments” is vague in its definition. Their interpretation of the phrase is “a retail food establishment is “similar” to a restaurant, and hence, covered, if it offers for sale restaurant or restaurant-type food and its primary business activity is the sale of food to consumers. The sale of food would be considered the primary business activity of an establishment if it fits two pieces of criteria.

They are…

1). The establishment presents itself as a restaurant by defining itself as such in a public manner. This could be accomplished by the establishment’s signage, categorization in the phone book, etc.

2). More than 50% of the establishment’s floor area is used for the preparation, purchase, service, consumption, or storage of food.

The FDA seeks comment on what space should be considered in determining gross floor area, and specifically whether 50% is the appropriate threshold and whether it should be higher or lower.

Based on these proposed rules the kinds of locations that would generally be affected are…

  • Table service dining establishments
  • Quick service (fast food) establishments
  • Cafeterias
  • Pastry and retail confectionary stores
  • Coffee shops
  • Snack bars
  • Ice cream parlors
  • Multi-purpose establishments that have presented themselves publicly as restaurants
  • Establishments within larger establishments that are part of a chain with locations outside of the larger establishment’s chain.

Establishments that would generally not fall under the rules would be…

  • Movie theaters
  • Amusement parks
  • General merchandise stores
  • Hotels
  • Trains
  • Planes

That is because 50% of the establishment’s floor area is not used for the preparation, purchase, service, consumption, or storage of food.

The FDA recognizes that these rules will have an enormous impact on the foodservice industry and it open to comments from the public to help them establish their rules. Key terms and phrases need to be officially defined before any progress can be made.

The entire 183 page document can be found at Food labeling: Nutrition labeling of standard menu items in restaurants and similar retail food establishments.

For further questions please contact us at max@menumax.com.

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