Monthly Archives: April 2016

Further Delay to the FDA Labeling Requirement

As part of the labeling requirement contained within the Affordable Care Act of 2010, the FDA was required to establish menu-labeling regulations. Enforcement was expected to begin December 1, 2015, but has been delayed twice. The first delay pushed the deadline for enforcement to December 1, 2016. In December, Congress directed the FDA to push the enforcement date until one year after publication of the final guidance. The FDA announcement on March 9, 2016 made this delay official. There has not yet been an indication as to when the final guidance will be published.

The rule will require restaurants and similar retail food establishments with 20 or more locations operating under the same name and serving substantially the same menu items to post calorie information for standard menu items and provide guests with additional nutrition information upon request.

Originally, alcohol was proposed to be exempted but is now included in the labeling requirement for restaurants. The majority of comments supported having alcohol beverages covered under the final rule due to impacts on public health.

A restaurant that meets the parameters of the regulations will have to list calorie and nutrition information for all beer, wine, and spirits listed on a menu. Mixed drinks that are not listed on a menu are exempted, as are liquor bottles on display behind a bar.

In some instances, the rule provides flexibility for beer and wine and allows for calorie ranges to be rather than individual calorie counts for each offering. It should be noted that the requirements of the final rule do not apply to temporary menu items, i.e., foods that appear on a menu or menu board for less than a total of 60 days per calendar year (e.g., a seasonal craft beer).

The TTB regulation of the alcohol industry will not be affected by the FDA’s labeling requirements. All of the labeling requirements will comply with TTB requirements. Additionally, alcohol producers will not be required to disclose the nutritional content of their products. The burden for disclosure under the FDA regulations will be restaurants, who will be allowed to use the accepted USDA measurements for nutritional content.