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The Food and Drug Administration recently issued a draft guidance document for the foodservice industry regarding the implementation of new menu-labeling legislation passed in March as part of the health care reform bill.

The document was released to ensure that the agency considers public comments before it finalizes the regulations. See the end of this article for contact information if you’d like to submit comments to the FDA for consideration. Comments must be received by Oct. 12.

This two-part series will outline the major components of the draft guidance document:

Which restaurants are subject to the mandatory menu-labeling provision?

Generally, all restaurants and retail food establishments with 20 or more locations with the same name — regardless of ownership — and offering substantially the same menu items are subject to the new menu-labeling law. These include all types of restaurants, as well as delivery establishments, convenience stores, movie theaters, bakeries, cafeterias, airlines and trains, and other food vendors such as food carts, lunch wagons, cookie shops and vending machines.

What about alcohol and self-serve drinks? What is covered? What’s not?

The guidance document states that alcoholic beverages and self-serve drinks are included in the provision.  All “standard menu items” are included, which means just about everything except:

• Table condiments
• Daily specials
• Customized orders, such as when a customer requests an item be made in a way that deviates from the standard preparation
• Pre-packaged foods that display nutrition information on their labels
• Temporary menu items appearing on the menu for less than 60 days per calendar year and market test items offered for less than 90 days per calendar year.

What are the requirements for posting calories and offering additional nutrition information?

The law has three major requirements:

1. Calories need to be printed on menus and menu boards — including dessert, beverage, takeout, and website menus — and should be “clear, conspicuous and adjacent to the name of the menu item.” The FDA guidance states, “Both the number of calories and the term ‘Calories’ or ‘Cal’ should be in a type size at least as large as the name or the price of the menu item, whichever is larger, with the same prominence, i.e., the same color and contrasting background as the menu item.” The guidance also states that restaurants may list the calories of each item in a single column titled “Calories” or “Cal” adjacent to the listing of the item.  For salad bars, buffets, self-serve foods and beverages, and display-type foods, the calories per food or per serving must be displayed as stated above on a sign adjacent to each item offered. The FDA states, “It should be clear to the customer that the caloric disclosure is associated with the food item.”

Calories should be rounded to the nearest 10-calorie increment for items with more than 50 calories and rounded to the nearest 5-calorie increment for items with 50 calories or fewer. Items with fewer than 5 calories can be expressed as zero.

In the coming months, the FDA will be providing additional guidance on how restaurants should handle variable menu items, such as when customers are offered one or more listed options, like a pizza prepared to order with list of toppings or ice cream when more than one flavor is listed.

2. Additional nutrition information must be available upon request.

Required information includes:

• Total number of calories
• Total number of calories derived from the total fat
• Total fat
• Saturated fat
• Cholesterol
• Sodium
• Total carbohydrates
• Sugars
• Dietary fiber
• Total protein

It is possible that the FDA will also require trans fat to be available, although this has not been officially added to the list of required nutrients at this point.

The additional information can be provided via a counter card, sign, poster, handout, loose-leaf binder, booklet, electronic device such as a computer or kiosk, or in the menu.

A statement of availability of the nutrition information must appear on the menu, menu boards and other materials used for ordering.  The statement, “Additional nutrition information is available upon request” must be printed in the same type size and prominence as the calorie information. The statement can be listed on every page of the menu or “the first appearance of the term ‘calories’ on succeeding pages after the first page with a symbol linking it to the required statement appearing on the first page of the menu,” the FDA said.

3. Restaurant must post a statement with the recommended daily caloric intake. In the coming months, the FDA will provide guidance on exactly what statement is required and how and where it must be displayed.

When will the law be implemented?

The guidance document released in August states that the law “became effective on the date the law was signed, March 23, 2010; however some provisions specifically require FDA to issue rules before FDA can implement them.”  The guidance also states that the “FDA is aware that the industry many need additional guidance from FDA and time to comply with the provisions (of section 4205) that became requirements immediately upon enactment of the law. Accordingly, FDA expects to refrain from initiating enforcement action until after a time period established in the final guidance.”

The FDA anticipates issuing final guidance in December 2010. Provisions that still need FDA guidance include:

• How calories and nutrition information for variable menu items should be disclosed
• What required statement of recommended daily caloric intake should be used
• What date compliance will be enforced
• Whether trans fat information is required with additional nutrition information

The FDA is accepting comments on the elements in the draft guidance before it begins work on the final version. The National Restaurant Association is gathering comments on behalf of its members, so if you are a NRA or state restaurant association member, send your comments to DRoehl@Restaurant.org. You can also submit electronic comments to www.regulations.gov or written comments to: Division of Dockets Management (HFA-305) Food and Drug Administration, 563- Fishers Lane, Room 1061, Rockville, MD 20852. In your comments, reference: Menu Labeling Provisions of Section 4205 of the Patient Protection and Affordable Care Act of 2010.

Click here for part two, in which Anita Jones-Mueller explains what the FDA’s draft guidance means for restaurant chains with 19 or fewer locations, and how the federal rules will impact chains in cities or states that already have menu-labeling laws on the books. In addition, she will offer tips for what operators can be doing now to prepare for the implementation of the new rules.

Anita Jones-Mueller is the founder and president of Healthy Dining in San Diego. E-mail Anita