Section 4205 of the Patient Protection and Affordable Care Act (ACA) requires that standard menu items at qualifying chain restaurants and vending machines have proper nutrition labeling. Section 4205 mandates labeling nutrition information for foods at chain restaurants and vending machine items to help consumers make more informed food choices.
The hope of these rules is that the disclosure of nutritional information will allow customers to make healthier, more informed decisions when dining out, with an end goal to minimize the rate of obesity and the significant health care cost associated with obesity. The Food and Drug Administration (FDA) is in charge of coming up with the labeling rules and the final rules are expected to be released later this year.
Who The Regulation Applies To
The FDA’s proposed requirements under Section 4205 apply to all “restaurants or similar retail food establishments with 20 or more locations doing business under the same name and offering for sale substantially the same menu items.” A business is covered under this requirement if 1) the establishment presents itself as a restaurant, or 2) more than 50% of the establishments’ floor area is used for the sale of food. The FDA has stated that movie theaters, amusement parks, general merchandise stores, hotels, trains and planes will generally not be subject to the proposed rule.
How to Comply With Regulation
If your business is subject to the FDA’s proposed regulation, there are several things that your business should be prepared to do to stay compliant with the regulation.
Disclosure Requirements
- Labeling of caloric and other information 1) in a clear and concise manner, 2) adjacent to the name of the standard menu item, 3) clearly associated with the standard menu item, and 4) of the number of calories contained in the standard menu items as usually prepared and offered
- Additional nutritional information must be made available to guests upon requests
- The FDA may add further requirements regarding the posting of information on certain nutrients if it deems they are necessary for maintaining a healthy consumer diet.
Training
- Back of house employees should pay close attention to portion size and preparing food as described in menu
- Front of house employees should be prepared to answer questions on nutritional information and also to provide written nutritional information upon request.
Management/Owners Duties
- Systematic menu analysis completed and menus updated
- Ensure goods received from third party comply with labeling requirements
Impact On Businesses Subject To Regulation
The cost of implementing the FDA’s proposed rule is hefty. According to Congressional Research Service, cost estimates for implementation of the proposed rule range from $315 million (FDA’s estimate) to over $1 billion (restaurant industry’s estimate). The FDA has identified three elements of cost for the new rule: 1) collecting and managing nutritional analysis records; 2) revising or replacing existing menus and menu boards, and 3) employee training.
Despite the cost of the new regulations, the hospitality industry has actually supported federal regulation in this area. The FDA’s rules preempt state and local laws which contain a variety of complicated and conflicting regulations. The FDA’s rules will therefore allow businesses to deal with a single, consistent set of rules throughout the country and help to avoid significant litigation.
If you have any questions, please contact the attorneys at Demorest Law Firm.
