Menu LabelingHoff Hospitality LawCharles Hoff JD, MBA

By PresenterMedia.com

State & Local Menu Labeling Laws Introduced, Passed, and Implemented

Inconsistent Local Regulations & ComplianceWho Needs to Comply:a) 10 locations nationallyb) 15 or more locations nationallyc) X within the state

Beverage Counts: a) Only Non-alcohol beveragesB) ALL beverages including Alcohol

Exemptions: Promotional Items, Test Items, and Buffet Servicea) Specials that appear on menus for less than thirty (30) days per year.b) Specials that appear less than 60 days/year or is a test market item that appears less than 90 days/yearc) Foods sold by weight or custom order quantity. d). Foods at a buffet, salad bar, or other self-serve

Penalties:Montgomery County, MD – up to $500 per day; Shut down for three daysNYC – Up to $2,000 California – Fines of no less than $50, and no more than $500.

Evolution of Menu Labeling1/2006: FDA requires Trans Fat to be listed on the Nutrition Facts panels of food labels; Followed by cities banning trans fat

1/2007: NYC is the first city to pass menu labeling law

1/2008: Industry lawsuit filed (New York State Restaurant Assoc v NYC Board of Health)

2008: NYC wins – Opening the door to state Menu Labeling legislation (i.e. New York State, Maine, Mass, Oregon, New Jersey, and Tennessee

3/2010: Passage of Section 4205 of the Patient Protections and Affordable Care Act . (ACA, aka Obamacare)

6/2012: Supreme Court upholds ACA

FDA Timeline & Anticipated Effective Date• FDA Federal Register notice for Public Commentary - July

2010 to October 2010• Proposed implementation date April 2013• Delayed as a result of Pizza Restaurants, supermarkets,

convenience stores and other retailers that sell prepared food.

• Restaurant Chains will have 6 months to comply from date of implementation.

Menu Labeling - Public Polling Data

Question Poll % Support/Agree

National PollsFast-food and other chain restaurants should list nutritional information, such as calories, fat, sugar or salt content on menus and menu boards

Caravan Opinion Research Corp., 2008

78

Menu boards should list nutrition information for all items served

Technomic Inc., 2007 74

Restaurants should make nutrition information available for all menu items

ARAMARK Corp., 2005 83

Restaurants should be required to provide nutrition information, including calories, on menus

Global Strategy Group, 2003

67

Statewide PollsSupport requiring fast-food and chain restaurants to display calorie content on menus or menu boards

End Hunger Connecticut, 2007

82

Support requiring fast-food and chain restaurants to post nutrition information on their menus

California Center for Public Health Advocacy, 2007

84

SUMMARY OF POLLS ON NUTRITION LABELING IN RESTAURANTS

Why the Restaurant Industry Supports the Federal GuidelinesWe are deeply disappointed by the Montgomery County Council’s passage of this legislation. While politically popular, local menu labeling laws contribute to a growing patchwork of inconsistent regulations that confuse both restaurateurs and their customers. We believe that nutrition disclosure laws are best handled at the federal level to insure a uniform, nationwide standard for chain restaurants that operate in multiple jurisdictions. -- Restaurant Association of Maryland

“Having a uniform, national standard allows us to take a consistent approach to providing nutritional information, rather than having to react to inconsistent state and local regulations,” Jeffers said. “This will ensure our guests see the same information, presented in the same manner, no matter where they dine with us.” “The primary cost will come from printing new menus,” he said. “Having a single, national standard will allow us to minimize cost by printing uniform materials for each of our brands.”--Rich Jeffers, Darden Restaurants Inc.

FDA Menu Labeling Basic Regulations• Must use the word “Calorie” or “Cal”

• Must be in a color that has the same level of visibility as the color of the menu item itself; does not have to be the same exact color

• Must be the same font size

• Must appear on or adjacent to the menu board; may not be listed on a separate board in a different area of the restaurant

Menu Labeling Basic Regulations

• Must cover all standard menu items (food and beverages); test items appearing on a menu for up to 90 days are exempt.• Standard menu items include food that is routinely listed or offered as a self-service food or food on display. • Combo meals must list standardized ranges of calories for combinations unless, if there are specific alternatives, specific related calorie info must be listed.

Menu Labeling Basic Regulations• Must include the following notification:Consuming 2,000 calories per day is generally recommended. Consider how menu

items fit within your total daily needs, which may be higher or lower depending on age, gender and level of physical activity; or

A 2,000-calorie daily diet is used as the reference point for general nutritional advice. Calorie needs vary depending on age, gender and level of physical activity

• Must include notification that more nutrient information is available in writing upon request.Additional information to be available to consumers: calories, calories from fat, total

fat, saturated fat, trans fat, cholesterol, sodium, total carbohydrates, dietary fiber, sugars, and protein

The FDA will enforce “strict liability”, no exceptions whether the violation is intentional or a mistake.

All penalties are:a) likely to be civil in nature,b) if repeated or deemed intentional or fraudulent, they could lead to criminal liability.

•Enforcement & Penalties

Protection from Regulators & Lawsuits• Preemption from state and local laws

• All nutrient content disclosures must have a REASONABLE basis. Nutritional information could be determined using nutrient databases, cookbooks, laboratory analyses, labels on packaged foods, or “any other reasonable means.”

• Practical issues come into play, i.e.a) How the required information will be incorporated into the menu structure (and updated when required), b) The source of the information used and related accuracy issues, c) How franchisee training and compliance will be monitored by restaurant companies’ legal, marketing, training and other departments.

Emerging evidence suggests that menu labeling does not impact revenue, and could have positive effects on the reformulation of menu items and other aspects of the restaurant environment (e.g., promotion and signage).*

*Impact of Menu Labeling on Consumer Behavior: A 2008–2012 UpdateUniversity of Minnesota, School of Public Health

Impact on Revenue

Photo credit: Eric Zelz | BDN

• A study with college students showed that calorie labeling on entrees led to selection of entrees with lower calories without reducing overall sales revenue.¹

• In Washington, adding caloric and nutrient information on the menus at full-service restaurants resulted in consumers purchasing entrees lower in calories, fat, and sodium.²

• Menu labeling may lead to parents choosing lower-calorie restaurant meals for their children.³

• Some studies suggest that the food service industry may respond to mandatory labeling by producing healthier options to expand their customer base and increase sales.⁴

Impact on Revenue

• Girz, L, Polivy, J, Herman, CP, & Lee, H. The effects of calorie information on food selection and intake. International Journal of Obesity, 2011; 36:1340–1345

• Pulos E, Leng K. Evaluation of a voluntary menu-labeling program in fullservice restaurants. Am J Public Health. 2010;100:1035-1039.

• Tandon PS, et al., Nutrition menu labeling may lead to lower-calorie restaurant meal choices for children. Pediatrics. February 2010. 125(2):244-248.

• Vadiveloo, MK, Dixon, LB, & Elbel, B. Consumer purchasing patterns in response to calorie labeling legislation in New York City. International Journal of Behavioral Nutrition and Physical Activity, 2011, 8(1), 51.

• Research in NYC about the impact on consumer behavior and industry response has provided valuable information. Initial consumer reaction to the NYC regulation was very promising:

• • Eighty-six percent of consumers thought it was a positive move;

• • Eighty-four percent said they read the calories on menus;

• • Ninety-seven percent said that calories were higher than they expected; and

• • Seventy-seven percent said that restaurants have a responsibility to respond to consumers’ nutritional concerns.

Source - Technomic, Inc. Executive Summary. Consumer Reaction to Calorie Disclosure on menus/menu boards in New York City. Project Number 13109.September 2008.

What the Public Thinks

BenefitsTechnological Innovations:• Tablets• Mobile Applications• Nutrition Calculators• Electronic Menu Boards

Potential for new offerings:• Smaller Portions = better food costs• Healthy Options

Anticipated Costs

The FDA estimates a cost of $269 per item to determine this information, while some industry groups have determined it will cost as much as $500 to $1,000 per item. (66)

Congressional Research Service - Nutrition Labeling of Restaurant Menus Amalia K. Corby-Edwards Analyst in Public Health and Epidemiology November 19, 2012

(66) Regulatory Counsel, Food Marketing Institute, Menu Labeling: Did FDA Overreach?, Food and Drug Policy Forum, Vol. 2 (13), Washington, DC, July 11, 2012, http://www.fdli.org/resources/resources-order-box-detail-view/menulabeling-did-fda-overreach-.

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Franchise Roll-out???