Grocers, food producers, and retail food establishments have two new regulations that will soon affect their businesses. The two new regulations impact packaged food and foods for immediate consumption. This articles highlights both regulations.

Updating the Look

The new label increases the type size of the calorie content, servings per container, and serving size information. Additionally, the calories per serving information must be bolded. Manufacturers will also be required to declare not only the daily percentage, but also the amount of Vitamin D, calcium, iron and potassium in their products. 

 

Finally, the “Daily Value” footnote at the bottom of the label will be amended to better explain the meaning. The new footnote will read: “*The % Daily Value tells you how much a nutrient in a serving of food contributes to a daily diet. 2,000 calories a day is used for general nutrition advice.”

 

Changes in Nutritional Science

The FDA’s study revealed that it is difficult to meet nutrient needs while staying within calorie limits if you consume more than 10 percent of your total daily calories from added sugar. To combat this, the FDA is requiring that manufacturers include the gram amount and daily value percentage of added sugars on each label.

 

The FDA is also updating the list of required nutrients on each label to include: Vitamin D, potassium, calcium and iron and the daily values for nutrients like sodium, dietary fiber and Vitamin D. Listing Vitamins A and C will no longer be required, but can be included on a voluntary basis. 

 

Updating Serving Size

The amount of food people eat and drink has changed since the previous serving size requirements were published in 1993. The new requirements seek to update food labels to reflect the amounts of foods and beverages that people are actually consuming, instead of the recommended serving size.

 

For example, the serving size on a carton of ice cream was previously ½ cup and is now changing to a cup. Similarly, a can of soda will now reference a 12 ounce serving size compared to the previous 8 ounces. Furthermore, the FDA has recognized that the size of food packaging has a direct effect on the amount of food that people consume.

 

So for packages that are between one and two servings, such as a 20 ounce soda or a 15-ounce can of soup, the calories and nutrients must be labeled as one serving for the entire package because people typically consume it in one sitting.

 

For some products that are larger than a single serving but can be consumed in one sitting or multiple sittings, manufacturers will have to provide “dual column” labels to indicate the amount of calories and nutrients on both a “per serving” and “per package”/“per unit” basis.

 

Manufacturers have until July 26, 2018 to comply with the new guidelines. The FDA has granted manufacturers with less than $10 million in annual food sales an additional year to comply. 

The impact of changes in our nutritional disclosure law is not limited to food manufacturers. The Affordable Care Act, signed into law by President Obama in 2010, created new menu-labeling requirements for restaurants that will go into effect as of May 5, 2017. 

 

These labeling requirements currently apply to restaurants and similar retail food establishments that are part of a chain of 20 or more locations. A restaurant or similar retail food establishment is defined by the FDA as “a retail establishment that offers for sale restaurant type food, which is generally food that is usually eaten on the premises, while walking away, or soon after arriving at another location.” 

 

Although the rule seems simple enough, it can be difficult to decide what is a “restaurant” or “similar food establishment” under the law. For example, many grocery stores offer hot foods, coffee bars, and sandwich shops.

 

Although these venues do not fall under society’s common perception of a restaurant, they function like a restaurant and therefore fall under the definition of a “similar food establishment.”  

 

The regulations require covered restaurants and similar retail food establishments to post on a menu or menu board: (1) the calorie information for standard menu items; (2) a succinct statement concerning suggested daily caloric intake; and (3) a statement that written nutrition information is available upon request.

 

The calories contained in each standard menu item must be listed next to the name or the price of the associated item in a type size equal or larger to that of the name or the price (whichever is smaller) and in the same color, or a color at least as conspicuous as the rest of the menu. Similarly, the caloric information must use the same contrasting background or a background at least as contrasting as that used for the rest of the menu.

 

Enforcement of the regulation was originally expected to begin December 1, 2015, but has been delayed twice. In December 2015, Congress directed the FDA to push the law’s enforcement date until one year after the agency published final guidance. Final guidance was published May 5, 2016, making the regulation enforceable on May 5, 2017.

 

Therefore, starting this May, the FDA may request that covered establishments provide information substantiating the nutrient values, including the method and data used to derive them.

 

On a final note, there has been speculation as to whether the new regulations will stay in place in the event that the Affordable Care Act is repealed. It is likely that the FDA has the authority to regulate and require these nutritional disclosures absent the Affordable Care Act.

 

However, a repeal could cause a further delay in enforcement. Furthermore, California’s current laws and regulations incorporate the requirements set forth in the Affordable Care Act. Therefore, a repeal of the Affordable Care Act may require California legislators to enact new laws and guidelines absent federal regulation.

 

In conclusion, the new laws are focused on promoting health by better informing the public. However, the new laws put the burden on the food provider to do so. With enforcement on the horizon, food producers, restaurants, and grocers would be well advised to plan to be in compliance before May 5, 2017.

 

Post publication note: On May 1, 2017 the FDA extended the compliance deadline for menu nutrition labeling to May 7, 2018. Downey Brand's Legal Alert about the extension can be read here.

 

This article appeared in California Grocer, Issue 2 (2017) and is republished with permission. © California Grocers Association.