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Polsinelli - Food and Agriculture Polsinelli - Food and Agriculture
         

  

January 2015

  

On the Menu in 2015: Final Menu Labeling Regulations

  

 
 

  

     

  

 
 

For more information about this alert, please contact:

  

Kathleen A. Hardee

Author

Polsinell

816.520.4903

khardee@polsinelli.com

  

Kristie Sigler

Author

FleishmanHillard

Contact Kristie Sigler

  

Polsinelli Food and Agriculture Leaders:

  

Dennis J. Dobbels

Practice Area Chair

816.360.4312

ddobbels@polsinelli.com

  

Edward E. Frizell

Business Services Division Chair

816.360.4158

tfrizell@polsinelli.com

  

Michael A. Williamson

816.360.4168

mwilliamson@polsinelli.com

  

Kathleen A. Hardee

816.520.4903

khardee@polsinelli.com

  

  

To view a full list of Polsinelli's Food and Agriculture Professionals, click here.

  

To learn more about Polsinelli's Food and Agriculture practice, click here.

  

To learn more about FleishmanHillard, click here.

  

  


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After waiting more than three years, the Food and Drug Administration (FDA) published the long anticipated final Menu Labeling Regulations on December 1, 2014. These regulations bring the requirements imposed upon restaurants more closely into alignment with the requirements imposed upon processed food manufacturers. While the processed food industry has been operating under similar standards for some time, the menu labeling regulations are a game changer for those who serve ready-to-eat food. Determining whether your business is covered and what is required under this new rule is a process that needs to be undertaken immediately.

The restaurant regulations arise from the Patient Protection and Affordable Care Act of 2010 (the "Act"). With the Act's goal aimed at health, Congress required that covered restaurants and retail food establishments provide certain nutritional information to customers so that they can make informed decisions when eating out. Because the primary motivation was to address obesity and its associated co-morbidities, the most prominent nutritional information required is accurate calorie counts, although significant other nutritional information must be available upon request.

The final regulation includes significant changes over those provisions contained in earlier drafts. Affecting businesses from a legal and marketing communications perspective, establishments have until December 1, 2015 to fully comply. Failure to comply with this rule will render food "misbranded," resulting in civil actions to seize the food and enjoin its sale, and/or in criminal actions brought by the FDA. From a communications aspect, the final regulations create yet another "to do" in a challenging foodservice marketplace. The good news is that a holistic nutrition communications plan presents an opportunity to tell a great food and brand story to guests.

  

A Legal Perspective

by Kathleen A. Hardee

  

Establishments covered under the new regulation fall within one of two categories:

  1. Restaurants or similar retail food establishments that are part of a chain with 20 or more locations doing business under the same name and offering for sale substantially the same menu items; or
  2. Other restaurants or similar retail food establishments that have voluntarily registered to "opt in" to the federal menu labeling requirements by registering with the FDA every other year.

Traditional restaurants are not the only business impacted by the new regulations. An establishment where food is sold that is usually eaten on the premises, while walking away, or soon after arriving at another location fall under the auspices of the new regulations. The rule covers some food take-out and delivery organizations, grocery stores, concession stands, and convenience stores. Unlike the draft, the final rule also includes some alcoholic beverages. Schools are not included, nor are transportation venues, such as airplanes and trains.

If an establishment is covered by the rule, it must provide the required nutritional information for its standard menu items, including food on display and self-service food. Calorie counts must be prominently displayed on all "primary writings." A primary writing is any medium where standard menu item(s) are identified, where a price is listed, or where a consumer could view the menu while ordering, such as:

  • Standard paper menus;
  • Menu boards;
  • Drive-up menu signs;
  • Online; and
  • Take-out menus.

For foods on display and self-service food, calorie information must be displayed adjacent to the food. This requirement would include salad bars, buffets, self-service drink dispensers and bakery counters. Special rules are set forth for variable menu items and combination meals.

Besides calorie counts, the primary writings must include the following additional statement: "2,000 calories a day is used for general nutrition advice, but calorie needs vary." If a menu or portion of a menu is targeted to children, the following optional statement may be included: "1,200 to 1,400 calories a day is used for general nutrition advice for children ages 4 to 8 years and 1,400 to 2,000 calories a day for children 9 to 13 years, but calorie needs vary." Although the primary target of this menu labeling regulation is calorie count, other nutritional information must also be available. A primary writing must also include a prominent statement that: "Additional nutrition information available upon request."

If a customer requests it, a covered business must provide the consumer with nutritional information similar to what is required in a Nutrition Facts label contained on all prepackaged foods:

  • Total calories;
  • Calories from fat;
  • Total fat;
  • Saturated fat;
  • Trans fat;
  • Cholesterol;
  • Sodium;
  • Total carbohydrates;
  • Dietary fiber;
  • Sugars; and
  • Protein.

The requested information can be provided via any type of writing, including handouts, posters, on electronic devices, or by any other means that allows the information to be readily provided to the consumer.

  

Marketing Communications Perspective

by Kristie Sigler

  

The draft regulations included mandates for restaurants and suggested a formula for other food establishments. The final regulations put the consumer front and center, enabling them to make informed decisions about the food and drink they enjoy at not only restaurants, but also at grocery store delis, convenience stores, movie theaters and other foodservice establishments. Now, also, both non-alcoholic and alcoholic beverages, which can contain upwards of 700 calories per serving, must display nutritional information. Consumers will see the numbers wherever they choose to eat, ultimately allowing consumers to choose between foodservice establishments based on the calories and nutritional quality of the foods offered, and providing your business with great marketing opportunities to distinguish yourself from other foodservice establishments.

Like most brands, your organization is probably putting the finishing touches on a 2015 business and marketing plan. Ideally, you can implement these regulations by integrating them during a menu launch or promotion planned in 2015, minimizing the impact to your operations. More importantly, you have an opportunity to lay the groundwork with management and store-level operations for the next year by emphasizing why this information matters to your guests and how they can successfully increase sales by embracing the regulation's requirements.

When educating your workforce, you should stress the many research studies focusing on the impact of menu labeling on consumer ordering patterns. Although the studies show that more nutritional information has mixed results on consumer behavior, one thing is confirmed — regular guests can be surprised and even dismayed when they see large calorie counts associated with their favorite menu items. A holistic nutrition communications strategy involves profit maximizing menu copy and engineering, effective training to assist guests with their food choices and consistent messaging inside and outside of your establishment.

Conclusion

Although the deadline for compliance is a year away, given the legal and scientific analysis necessary to determine what information to disclose, as well as the marketing and branding efforts necessary to present the information, any establishment potentially affected by these rules needs to begin developing its compliance process and communications strategy immediately.

For More Information

For more information on the final rule or how it may impact your business, please contact the authors or your Polsinelli attorney.

 
 

  

     

  

 

 

  

     

  

 
 

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Polsinelli is a first generation Am Law 100 firm serving corporations, institutions, entrepreneurs and individuals nationally. Our attorneys successfully build enduring client relationships by providing practical legal counsel infused with business insight, and with a passion for assisting General Counsel and CEOs in achieving their objectives. Polsinelli is ranked 18th in number of U.S. partners* and has more than 740 attorneys in 19 offices. Profiled by The American Lawyer and ranked as the fastest growing U.S. law firm over a six-year period**, the firm focuses on health care, financial services, real estate, life sciences and technology, energy and business litigation, and has depth of experience in 100 service areas and 70 industries. The firm can be found online at www.polsinelli.com. Polsinelli PC. In California, Polsinelli LLP.

* Law360, March 2014
** The American Lawyer 2013 and 2014 reports

  

 
 

  

     

  

 
 

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