FDA Seeking Public Comment on Federal Menu Labeling Requirements

By Susan J. Matthees –

FDA recently announced that the Agency is seeking public comments on how to implement section 4205 of the Patient Protection and Affordable Care Act of 2010 (“PPACA”), which requires certain restaurants and vending machines to disclose nutrition information.  The docket opened on July 7 and will remain open for comment for 60 days. 

Under PPACA § 4205, chain restaurants and retail food establishments with 20 or more locations doing business under the same name and offering for sale substantially the same menu (“chain restaurants”) as well as  vending machine owners or operators with 20 or more vending machines must display certain nutrition information.  The law does not limit the location count to the United States, so it is not clear whether restaurants and vending machines outside the US count towards the 20 limit. Chain restaurants with drive-through menus must display calorie information next to each standard menu item.  All chain restaurants also must include on  menus  the Secretary of the Department of Health and Human Services’ (“the Secretary”) statement on suggested daily caloric intake, provide  written  nutrition information to customers upon request, state on menus that written nutrition information is available, and, for self-service foods (e.g., buffets), include  calorie disclosures next to each food.  The Secretary must pass regulations that establish how nutrition content will be disclosed for standard menu items that are offered in a variety of flavors or combinations (e.g., pizza, ice cream). 

Vending machines must bear calorie disclosures for each item offered for sale unless the Nutrition Facts panel for a food is available for the customer to view before purchasing food. 

FDA seeks input on a number of matters related to implementing the law, including:

• The types, sizes and nature of activities of chain restaurants, and size of chain vending machine operators;
• Current practices with respect to the use of menus and menu boards, including the disclosure of nutrition information on menus and menu boards;
• The disclosure of calorie content  in self-service areas and for vending machine foods;
• The calorie disclosure statement to be established by the Secretary  for addition to  chain restaurant menus;
• Methods on how to achieve nutrition disclosure for menu items offered in a variety of flavors and combinations;
• Categories that should be exempt from the disclosure requirements;
• Estimated number of chain restaurants and vending machine operators that might be affected by the law and those that might voluntarily comply;
• How to determine calorie content of foods offered by chain restaurants; and
• How to display the Nutrition Facts panels on vending machines.

The comment period closes on September 5.