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The national menu labeling stipulation in the Affordable Health Care Law will preempt any existing municipal and state mandates, such as New York City's, which has been in existence since 2006.
The National Restaurant Association has been working closely with the Food and Drug Association since the law was passed in 2010 to make sure restaurants are able to effectively carry out the regulations. The FDA has drafted preliminary language requiring calorie labeling on menu boards and the availability of nutrition information in all national restaurant chains with 20 units or more.
Dan Roehl, public affairs specialist for the NRA, expects the full regulations to go into effect in the fall. He provided an update on "Menu Labeling: Where do we stand?" at the recent NRA show in Chicago, along with Cicely Simpson, senior director, Government Affairs, Dunkin' Brands Inc.
According to Roehl, after NYC's menu labeling law went into effect, numerous other local and state governments jumped on board as well. The challenge to the restaurant industry, however, is that every approach is different.
"As an industry, we had to step back and figure out a better way. Since then, conversations have been taking place about what must be disclosed and when," he said.
For example, how will variables/combination meals present nutritional information on a limited-sized menu board? For such cases, when a diner has a choice that will affect the caloric information, it should be listed in a range – minimum possible calories included to maximum possible calories included.
There are other special cases currently included in the law. For example, for items that are "assumed to be shared," nutritional information needs to be listed for the entire item, regardless of servings intended for consumption. Also, food served on a buffet line or other self-service format will be listed as calories per serving.
There are exemptions written into the law, such as items that appear on menus for less than 60 days, alcoholic beverages, custom orders and condiments.
Primarily located, succinct statements
Roehl said to comply, the nutritional information has to be displayed in "primary writing." This means:
This information right now is expected to be displayed on menu boards and marketing materials, however, Roehl said the NRA is currently having discussions with the FDA to limit the marketing materials requirement because of the daunting nature and costs these updates would present.
Additionally, menus and menu boards will have to display a "succinct statement" and a "statement of availability of additional information."
The "succinct statement" reads:
"A 2,000 calorie daily diet is used as the basis for general nutrition advice; however, individual needs may vary."
The availability statement reads:
"Additional nutrition information is available upon request."
These two statements are currently required to appear on the bottom of each page in multi-paged menus, or the first page with matching asterisks for each calorie value.
Who this affects
Restaurants and retail food establishments (with more than 50 percent of floor space devoted to food and beverage items) that are part of a chain with 20 or more locations will be expected to comply with this law once it officially goes into effect. This includes franchised systems.
Mom and pop independents can participate by choice.
Generally, those included are: table-service restaurants; quick-service; cafeterias; pastry and retail confectionary stores; coffee shops; snack bars; ice cream parlors; multipurpose establishments that have "presented themselves as restaurants;" establishments within larger establishments that are part of a chain, such as a bookstore cafe; grocery stores; convenience stores; and vending machines.
Those generally not included are: movie theaters; amusement parks; general merchandise stores; hotels; trains; and planes.
Roehl said the preemption piece is particularly critical for the restaurant industry, as those that currently comply to a local law will likely have to make changes to fit the federal law.
"For this type of enforcement, the big question is when will this happen and all I can say is we're continuing to work on this. The suggestion is that it will be around November when we see the final regulations," Roehl said. "Once that happens, restaurants will have six months or a year to put those final regulations in place. We suggested a year because we think six months presents a challenge, but we don't know at this time."
An operator's point of view
Simpson said it is of the utmost importance that restaurant operators affected by this law be completely prepared. That means reading the proposed rule (which is nearly 200 pages) section by section and understanding the details included.
Step one, she said, is dissecting the proposed rule. Step two is laying out all of the different scenarios that could affect the company – for example, will the calorie information look different if they're on a digital menu board versus a static menu board, will it be presented in a way that is consumer friendly, etc.
"Menu boards are precious real estate. How you display this information and these statements is very important to the business," she said. "This isn't something you can do last minute."
Step three is planning for implementation. If the FDA hands down a six-month window for compliance, it will be a sprint to the finish.
"Where do you start? East to west? With franchisees? We have a huge number of franchisees that have never been through something like this locally, so there is an education piece to it," Simpson said. "Once those final instructions are handed down, you need to hit the ground running."
Because the law is complex, everyone in the system needs to be part of the education and preparation processes – from marketing to operations to the supply chain. Also, Simpson said constant refreshment of what's in the law is important to avoid fines.
Finally, it's important for operators to have written documentation on how their calories are calculated.
"You could put yourself at risk by calculating calories one way and having FDA test and calculate them another way," she said. "If you haven't started planning on this or preparing for implementation, do so now."
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