FRANCHISEE 101: Complying with the FDA's New Menu Labeling Requirement

Lewitt Hackman
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On November 25, 2014, the Food and Drug Administration (FDA) released final rules governing menu and vending machine labeling to implement some of the Affordable Care Act's nutrition labeling requirements.

The final rule for menu labeling is entitled the Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments Rule ("Menu Rule"). Its coverage includes restaurant franchise systems.

According to the FDA's website, the Menu Rule "applies to restaurants and similar retail food establishments if they are part of a chain of 20 or more locations, doing business under the same name, offering for sale substantially the same menu items and offering for sale restaurant-type foods." Covered establishments include sit-down restaurants, drive-thrus, take-outs, delis (including grocery store delis), places with self-serve salad/food bars, bakeries, coffee shops, movie theatres, amusement parks, ice cream stores, convenience stores serving ready-to-eat foods and drinks, and certain bars serving alcohol. The FDA claims the Menu Rule will help consumers make informed choices by providing accurate, clear and consistent nutrition information when they eat out. The FDA says that at least two-thirds of adults and one-third of children in the U.S. are overweight or obese and eat one-third of their calories away from home.

The Menu Rule requires posting calorie information for standard menu items on the menu and menu boards, including electronic and online menus, so customers can understand the posted caloric information in context of their total daily diets. The postings must state that detailed, written nutrition information is available to customers on request. A covered establishment must have a reasonable basis for its nutritional declarations, keep records relating to the nutritional data used as a basis for, and methods used to determine, the nutritional information provided to customers, and make the information available to the FDA on request.

Starting December 1, 2015, franchisees, and franchisors operating company-owned locations, need to comply with the Menu Rule. Franchisees should be proactive and communicate with their franchisors and suppliers to obtain accurate nutritional data and determine what new standards their franchisors plan to implement to maintain uniformity and enable franchisees to comply with the Menu Rule's requirements.

Restaurant franchisors are likely starting to test standard menu items and work on new menu and menu board standards to provide to franchisees. But franchisees should not wait to hear from their franchisors since franchisees will be responsible to comply with the Menu Rule in December regardless of any action taken by their franchisors.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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