While many in the foodservice community have long supported the implementation of federal menu-labeling standards, the proposed regulations issued earlier this month by the U.S. Food and Drug Administration already are drawing criticism from industry members.
Some observers characterize the 183-page document as being overly complex and detailed, ignoring the diversity of the foodservice industry, and not creating a level playing field, among other things.
“It’s very disappointing,” said Scott Vinson, vice president of the National Council of Chain Restaurants in Washington, D.C. “It’s unnecessarily complicated and proscriptive, and lacking in the flexibility we had asked for. Apparently, [the FDA doesn’t] trust us to do right by our customers.”
Acknowledging the complexity of the menu-labeling issue, the FDA published its long-anticipated proposed regulations April 1 after missing an initial deadline of March 23 — one year after President Barack Obama signed the provision into law as part of the Patient Protection and Affordable Care Act of 2010.
Foodservice operators and associations now have about 60 days to comment. The FDA is expected to publish its final regulations by the end of this year, and enforcement would begin about six months after that — another sore point with the industry.
Jason Straczewski, senior director of government relations for the International Franchise Association, said while additional time is needed to study the document, the industry also requires more than six months to implement the new rules.
“Restaurant companies and franchisees need adequate time to implement it,” he said. “We would like to see a minimum of a year.”
“The six-month implementation period is not a realistic time frame,” said Joe Kefauver, managing partner and principal for Parquet Public Affairs in Orlando, Fla. “For one thing, how many companies manufacture menu boards? Once the requirements are finalized, all of these restaurant chains are going to ‘hit send’ and order 5,000 menu boards. It’s really just not workable.”
Industry members also say the 60-day comment period does not give them enough time give input.
“The vending-machine industry got 90 days because the FDA said they entered into the process later than we did,” Kefauver said. “We’ve been at the table since the beginning, so they get rewarded for their laxness.”
Many in the industry had thrown their support behind the concept of federal menu labeling, reasoning that it would avert a patchwork quilt of state and local regulations and level the playing field for those in the foodservice industry. However, in the proposed rules the FDA exempts certain food purveyors, like movie theaters, amusement parks, general merchandise stores and hotels. Some observers have suggested that the FDA revisit this decision.
Dan Roehl, a spokesman for the National Restaurant Association, questioned the reasoning for several of the exemptions.
“If an operation meets the three-point test of having 20 units or more, conducting business under the same name and offering for sale basically the same menu selections, it should be subject to the regulations,” Roehl maintained.
Even the Center for Science in the Public Interest, which largely supports the regulations, said it was disappointed that movie theaters were excluded, adding that it will press the FDA to include them in the final iteration.
“I suspect there will be some in Congress who will be concerned about this aspect of the proposal,” Vinson said.
The FDA’s ruling that chains must post calories directly on menu boards at drive-thrus also presents another problem, observers say.
“We requested that chains be allowed to position separate stanchions adjacent to drive-thru menu boards because there is not often enough room to post calories on those boards,” Vinson said. “It’s galling.”
Vinson also questioned the FDA’s “proscriptive” stance on font, color and size, which states that calorie listings must generally match the individual menu selections.
“There are certain principles in graphic design — every word shouldn’t be posted in the same font, size, color and [contrasting background],” he said. “The boards need to be readable. That didn’t seem to get through to them.”
Kefauver also said the language defining the “reasonable basis standard” — which establishes that all posted nutrition data must be accurate within a 20-percent range — “needs to be tightened up. I think the language as it stands makes people a little uncomfortable.”
In the meantime, industry experts continue to pore over the FDA document as they prepare to comment on it. The full document is available at www.fda.gov.
The following explores some key points of the document:
Restaurants or similar food establishments with 20 or more locations nationwide, conducting business under approximately the same name and offering for sale essentially the same food selections. A “restaurant or similar food establishment” is defined as an operation whose main business is selling restaurant or restaurant-type food to consumers.
• Table-service establishments
• Quick-service establishments
• Cafeterias
• Pastry and retail confectionary stores
• Coffee shops
• Snack and ice-cream parlors
• Multi-purpose establishments that have presented themselves publicly as restaurants
• Chain establishments within larger establishments, that have locations outside of the larger establishment’s chain — for example, a Starbucks in a Barnes & Noble
• Grocery stores
• Convenience stores
• Vending machines
The term “same name” includes slight variations based on region, location or size. For example, “Joe’s Burgers New York Ave.” and “Joe’s Burgers Pennsylvania Ave.” or “ABC” and “ABC Express.”
The term “offering for sale substantially the same menu items” means offering selections that use the same general recipe and are prepared in substantially the same way with substantially the same food components, even if the names of the items may vary.
The new requirements do not apply to custom orders, daily specials, food that is part of a market test, temporary menu items, alcoholic beverages and condiments on the table.
The term “custom order” means a food order that is prepared in a specific manner based on an individual consumer’s request, which requires the restaurant or similar retail food establishment to deviate from its usual preparation of a menu item. The FDA says the restaurant can post a range of calories for items that are customized, such as pizza, combination meals or ice cream, where there may be many flavors.
The term “daily special” means a menu item that is prepared and offered for sale on a particular day, that is not routinely listed on a menu or offered by the restaurant and that is promoted as a special menu item for that particular day.
The term “food that is part of a customary market test” means food that is marketed for fewer than 90 consecutive days in order to test consumer acceptance of the product.
The term “temporary menu item” means a food item that appears on a menu or menu board for fewer than 60 days per calendar year.
Restaurants that include customer self-service areas must label food selections at the place they are displayed. When a self-service food is already accompanied by an individual sign adjacent to the item that provides the food’s name, price or both, listing calories on that sign satisfies the requirement.
Calories must be posted on menus and menu boards in the same color — or in a color at least as conspicuous — as the name of the associated standard menu item. The calorie declaration must have the same contrasting background as the background used for the name of the associated standard menu item on the menu or menu board. In addition, the calorie declaration must be in a font size large enough to be “clear and conspicuous.”
The FDA says advertisements for food fall outside the scope of the requirements. However, take-out and delivery menus that include all or a significant portion of items offered for sale and serve as the primary source from which consumers can order would be qualified as menus under the proposed rule.
If consumers can order from a qualifying restaurant online, over the phone or by fax using an electronic version of the menu as the primary source to place an order, then the Internet menu must post caloric content.
The FDA is proposing that the final rule become effective six months from the date of its publication of the official rules. Some sources believe that will occur at the end of 2011.
Initial average costs are estimated to be $1,100 per establishment.
Contact Paul Frumkin at paul.frumkin@penton.com.
