New Labeling Requirements

FDA issued a draft rule last month for menu and vending machine labeling requirements. The law, proposed last year, would require chain restaurants and vending machine operations with more than 20 units to post nutrition information. FDA is accepting comments on the proposed rule through early June, and comments can be submitted through

“These proposals will ensure that consumers have more information when they make their own food choices,” said Kathleen Sebelius, Department of Health and Human Services Secretary. “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 intent of the rule, brought about by the Affordable Care Act of 2010 that passed in March 2010, is to provide consumers information to make better health choices. Consumer research has indicated that consumers want this information and would use it when deciding on menu items.

“Americans now consume about one-third of their total calories on foods prepared outside the home,” said FDA Commissioner Margaret A. Hamburg. “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.”

Chain Restaurants

Under the proposed rule, restaurant operations with 20 or more units with the same name and selling similar menu items would be required to display calorie information for menu items and self-serve food, as well as provide additional written nutrition information if a customer requests it. Restaurants also will be required to post a statement identifying the suggested total daily calorie intake in a prominent spot.

Similar restaurants with different owners – franchisees, for example – would fall under the proposed rule. While the language covering the definition of a restaurant is currently vague, FDA has said it may interpret this as establishments presenting themselves as restaurants (through phone books or websites) or if more than 50 percent of the gross floor area is used for prep, purchase, service, consumption or storage of food. Alternatively, FDA may use percentage of sales in the definition – if more than 50 percent of sales are from food. FDA is asking for comments on which definition to use.

Under the gross floor plan definition, the types of establishments under the proposed rule would include table service and quick-service restaurants, cafeterias not part of a larger school or hospital, coffee shops, snack bars, ice cream parlors and grocery stores or convenience stores that sell restaurant-type foods – if they have been presented as a restaurant in the past.
Calorie information must be adjacent to the item on a menu or display board, according to FDA, in order to clearly identify the caloric information for each product. Self-serve salad bars, buffet lines and beverage stations should have the calorie information on a sign adjacent to the station. All standard menu items are included, but custom orders, daily specials, test market products and temporary menu items would not need calorie information displayed.

Vending Machines

According to the language in the draft rule, a person or business owning or operating 20 or more vending machines would be required to post nutritional information if the product information is not visible before purchase. Because packaged goods already are required to have the nutrition information on the packaging, the operator would be required to post that same information in close proximity to the product or the selection button that “includes a clear and conspicuous statement disclosing the number of calories contained in the article,” the rule states.

Due to limited space for this information on vending machines, FDA has noted some concessions. For example, the calorie total must be displayed, but it can be rounded to the nearest five-calorie increment up to 50 calories, and 10-calorie increments above that. FDA initially stated that the term “calorie” must follow the numeric total, but now says it will permit the shortened “Cal” for the declaration to save space.

The caloric declaration also must reflect the product as it is vended, the rule reads. If a product has three servings at 80 calories each, for example, then the displayed information should display “240 calories” or “240 Cal.” If a product in the vending machine has multiple ingredients – a container of salad dressing or mayonnaise, for example – then the calorie information displayed should include the product plus the side ingredient. Operators may voluntarily indicate calories per serving or the calories in side dressings in addition to the total.

Some products without packaging, including whole fruit, do not have calorie information. In those cases, vendors would have to supply the operator with the information, and if that isn’t possible the information could come from other means (which FDA is accepting comments on).

The caloric information will be in or on the vending machine itself, or immediately adjacent to the machine. The agency is interpreting the rule as displaying the information close to the product or near the selection buttons. If the signage is on the machine, it should be in a font size no smaller than the product name, selection number or selection buttons, and the color should match as well.

Once the final rule is accepted, vending machine operators will have two years to come into compliance, which means displaying the required information or working with vendors so that nutrition information is visible to consumers on the face of the package.


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