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Menu Labeling: What You Need to Know

by Georgia Restaurant Association on Jun 29, 2010

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The Georgia Restaurant Association Presents: ...

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The Georgia Restaurant Association Presents:
Menu Labeling: What You Need to Know

Sponsored By: U.S. Foodservice

When: June 29, 2010 from 2-4pm

Where: Taco Mac Prado
5600 Roswell Road NE
Atlanta, GA 30342

Speakers:

-Charles Hoff, Law Offices of Charles Y. Hoff
-Amanda Rieter, NRA State Strategy & Policy
-Lucy Needham, CEO FoodCALC®

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Most of you are aware that the Patient Protection and Affordable Care Act, which the President signed into law on March 23, included a provision (Section 4205) requiring chain restaurants and similar retail food establishments to post certain nutrition information on menus and menu boards. This provision also immediately preempts all state, local, or other non-federal jurisdictional requirements that are not identical to the new federal labeling mandate. Section 4205 of the new statute directs the Food & Drug Administration (FDA) to engage in notice and comment rulemaking to define the particulars of the federal mandate. There are several terms included in the statute that will require further definition and clarification in order for industry obligations to become clear. We expect the FDA to begin this regulatory rulemaking process in very short order. It is important for our industry to be engaged in this process with the FDA to ensure that our obligations under the statute are clear and workable. Within 120 days of the statute’s enactment on March 23, the FDA must establish the “terms and conditions” of one particular component of the new statute, known as the “voluntary program.” The voluntary program permits both covered (chains with 20 or more restaurants nationwide) and non-covered restaurants and food retail establishments to voluntarily provide nutrition information prior to the time when the agency’s final implementing regulations for the mandatory program take effect. If a restaurant elects to participate in the voluntary program, it is exempt from any state, local or other non-federal jurisdictional labeling requirements that are not identical to the new federal labeling mandate. We expect that the terms and conditions the FDA establishes for the voluntary program will serve as the starting point (and perhaps even the end point) for the terms and conditions that are developed for the subsequent mandatory program. Therefore, it is critical that we engage in this process immediately, as the deadline for the FDA to establish terms and conditions under the voluntary program is July 21. NCCR and NRA are working closely together during this phase. We have begun to identify key issues from the statute that we believe require clarification in rulemaking. Your participation in this review is critical. We believe it is important to seek and obtain input from all our joint members in order to provide the best possible information to regulation-writers at the FDA, and to ensure that industry concerns are shared with the agency early in the process. Ultimately, the entire chain restaurant community will be affected by this new federal requirement – we want to ensure our obligations are something we can live with. Section 4205 of the Act, which is now codified at 21 U.S.C. Section 343 (a)(5)(H), is reprinted in full at the end of this memo. We ask that you review this language for any terms or requirements that you believe need clarification or further definition. So far, we have identified the following terms and conditions that we believe need to be addressed in the rulemaking: Drive-thru menu boards: It must be made clear that the use of stanchions adjacent to the drive-thru menu board is to be allowed for posting calories. Contextual statement: The statute requires the posting on menus and menu boards of a succinct “contextual” statement concerning suggested daily caloric intake to enable consumers to understand the significance of caloric intake. The FDA should recognize that there are constraints on labeling space and that the required contextual statement is truly succinct. Complex carbohydrates and trans fat : Although declaration of “complex carbohydrates” is required by the language of the Nutrition Labeling and Education Act (NLEA), in promulgating nutrition labeling requirements for packaged foods in 1993, FDA decided to refer to “complex carbohydrates” as “other carbohydrates” and deemed the declaration of “other carbohydrates” to be voluntary. See 21 C.F.R. § 101.9(c)(6)(iv). We should advise FDA to follow the precedent established for packaged foods. Self-service : Flexibility in placement of signs “adjacent to” menu items should be allowed. Reasonable basis : Section 4205 acknowledges the variability that occurs with respect to restaurant foods and provides that nutrition information disclosed for standard menu items must be determined with reasonable basis. 21 U.S.C. § 343(q)(5)(H)(iv). A reasonable basis determination – as previously established by FDA – may be based on nutrient databases, cookbooks, laboratory analyses and other reasonable means described in FDA’s regulations and related guidance. See 21 C.F.R. 101.10. We should advise FDA to follow precedent under the NLEA. Menu variability and combination meals : Establishments should be allowed flexibility to employ averages, ranges or any other method that provides nutrition information for combination items or items available in different varieties or flavors in a truthful and nonmisleading manner. Customary market test : To advise FDA on what “terms and conditions” should apply to this exemption. “ Menu”/“menu board” : FDA should clarify that definition does not include marketing materials or special pricing offers. National uniformity : FDA should reiterate that establishments (including chains) that register in the voluntary program and provide nutrition information in accordance with section 403(q)(5)(H) shall enjoy preemption of conflicting State/local requirements. In order to provide FDA with meaningful information on these topics, we hereby request the following information from your companies by Monday, April 26th : 1. What means are preferred for determining nutrition information of combination items and items available in different varieties/flavors? a. Should certain types of food items be grouped together? b. If ranges are used, what are reasonable limits to ensure that disclosure is meaningful to consumers? We believe that FDA is unlikely to permit ranges that are too broad, as very broad ranges may not be sufficiently informative. c. What other challenges do you face with providing nutrition information for combination items and items available in different varieties/flavors? 2. How do you define a customary test market? 3. What promotional materials do you currently use that could potentially be deemed to be a menu/menu board? Please also tell us of any other terms and conditions from the statute below that require further refinement. Once you have determined the key regulatory issues, it would be helpful to us if you could prioritize them in order of importance to your company. Additionally, if in your company’s experience there are particular state or local jurisdictions with labeling mandates that have addressed these issues in a satisfactory or preferable way, please tell us. For example, if State X has dealt with drive-thru menu boards in a way that is preferable to the manner in which State Y has done so, please let us know. We thank you in advance for your input into this process. As is often said, the “devil is in the details.” That certainly holds true for federal government regulations. With your assistance we will work to ensure this new federal nutrition labeling mandate is as workable for our industry as possible. Best, Scott Vinson Dan Roehl Vice President Public Affairs Specialist National Council of Chain Restaurants National Restaurant Association [email_address] [email_address] Joan McGlockton Vice President, Industry Affairs and Food Policy National Restaurant Association [email_address] SEC. 4205. NUTRITION LABELING OF STANDARD MENU ITEMS AT CHAIN RESTAURANTS. (a) Technical Amendments- Section 403(q)(5)(A) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 343(q)(5)(A)) is amended-- (1) in subitem (i), by inserting at the beginning èxcept as provided in clause (H)(ii)(III),'; and (2) in subitem (ii), by inserting at the beginning èxcept as provided in clause (H)(ii)(III),'. (b) Labeling Requirements- Section 403(q)(5) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 343(q)(5)) is amended by adding at the end the following: `(H) Restaurants, Retail Food Establishments, and Vending Machines- `(i) GENERAL REQUIREMENTS FOR RESTAURANTS AND SIMILAR RETAIL FOOD ESTABLISHMENTS- Except for food described in subclause (vii), in the case of food that is a standard menu item that is offered for sale in a restaurant or similar retail food establishment that is part of a chain with 20 or more locations doing business under the same name (regardless of the type of ownership of the locations) and offering for sale substantially the same menu items, the restaurant or similar retail food establishment shall disclose the information described in subclauses (ii) and (iii). `(ii) INFORMATION REQUIRED TO BE DISCLOSED BY RESTAURANTS AND RETAIL FOOD ESTABLISHMENTS- Except as provided in subclause (vii), the restaurant or similar retail food establishment shall disclose in a clear and conspicuous manner-- `(I)(aa) in a nutrient content disclosure statement adjacent to the name of the standard menu item, so as to be clearly associated with the standard menu item, on the menu listing the item for sale, the number of calories contained in the standard menu item, as usually prepared and offered for sale; and `(bb) a succinct statement concerning suggested daily caloric intake, as specified by the Secretary by regulation and posted prominently on the menu and designed to enable the public to understand, in the context of a total daily diet, the significance of the caloric information that is provided on the menu; `(II)(aa) in a nutrient content disclosure statement adjacent to the name of the standard menu item, so as to be clearly associated with the standard menu item, on the menu board, including a drive-through menu board, the number of calories contained in the standard menu item, as usually prepared and offered for sale; and `(bb) a succinct statement concerning suggested daily caloric intake, as specified by the Secretary by regulation and posted prominently on the menu board, designed to enable the public to understand, in the context of a total daily diet, the significance of the nutrition information that is provided on the menu board; `(III) in a written form, available on the premises of the restaurant or similar retail establishment and to the consumer upon request, the nutrition information required under clauses (C) and (D) of subparagraph (1); and `(IV) on the menu or menu board, a prominent, clear, and conspicuous statement regarding the availability of the information described in item (III). `(iii) SELF-SERVICE FOOD AND FOOD ON DISPLAY- Except as provided in subclause (vii), in the case of food sold at a salad bar, buffet line, cafeteria line, or similar self-service facility, and for self-service beverages or food that is on display and that is visible to customers, a restaurant or similar retail food establishment shall place adjacent to each food offered a sign that lists calories per displayed food item or per serving. `(iv) REASONABLE BASIS- For the purposes of this clause, a restaurant or similar retail food establishment shall have a reasonable basis for its nutrient content disclosures, including nutrient databases, cookbooks, laboratory analyses, and other reasonable means, as described in section 101.10 of title 21, Code of Federal Regulations (or any successor regulation) or in a related guidance of the Food and Drug Administration. `(v) MENU VARIABILITY AND COMBINATION MEALS- The Secretary shall establish by regulation standards for determining and disclosing the nutrient content for standard menu items that come in different flavors, varieties, or combinations, but which are listed as a single menu item, such as soft drinks, ice cream, pizza, doughnuts, or children's combination meals, through means determined by the Secretary, including ranges, averages, or other methods. `(vi) ADDITIONAL INFORMATION- If the Secretary determines that a nutrient, other than a nutrient required under subclause (ii)(III), should be disclosed for the purpose of providing information to assist consumers in maintaining healthy dietary practices, the Secretary may require, by regulation, disclosure of such nutrient in the written form required under subclause (ii)(III). `(vii) NONAPPLICABILITY TO CERTAIN FOOD- `(I) IN GENERAL- Subclauses (i) through (vi) do not apply to-- `(aa) items that are not listed on a menu or menu board (such as condiments and other items placed on the table or counter for general use); `(bb) daily specials, temporary menu items appearing on the menu for less than 60 days per calendar year, or custom orders; or `(cc) such other food that is part of a customary market test appearing on the menu for less than 90 days, under terms and conditions established by the Secretary. `(II) WRITTEN FORMS- Subparagraph (5)(C) shall apply to any regulations promulgated under subclauses (ii)(III) and (vi). `(viii) VENDING MACHINES- `(I) IN GENERAL- In the case of an article of food sold from a vending machine that-- `(aa) does not permit a prospective purchaser to examine the Nutrition Facts Panel before purchasing the article or does not otherwise provide visible nutrition information at the point of purchase; and `(bb) is operated by a person who is engaged in the business of owning or operating 20 or more vending machines, the vending machine operator shall provide a sign in close proximity to each article of food or the selection button that includes a clear and conspicuous statement disclosing the number of calories contained in the article. `(ix) VOLUNTARY PROVISION OF NUTRITION INFORMATION- `(I) IN GENERAL- An authorized official of any restaurant or similar retail food establishment or vending machine operator not subject to the requirements of this clause may elect to be subject to the requirements of such clause, by registering biannually the name and address of such restaurant or similar retail food establishment or vending machine operator with the Secretary, as specified by the Secretary by regulation. `(II) REGISTRATION- Within 120 days of enactment of this clause, the Secretary shall publish a notice in the Federal Register specifying the terms and conditions for implementation of item (I), pending promulgation of regulations. `(III) RULE OF CONSTRUCTION- Nothing in this subclause shall be construed to authorize the Secretary to require an application, review, or licensing process for any entity to register with the Secretary, as described in such item. `(x) REGULATIONS- `(I) PROPOSED REGULATION- Not later than 1 year after the date of enactment of this clause, the Secretary shall promulgate proposed regulations to carry out this clause. `(II) CONTENTS- In promulgating regulations, the Secretary shall-- `(aa) consider standardization of recipes and methods of preparation, reasonable variation in serving size and formulation of menu items, space on menus and menu boards, inadvertent human error, training of food service workers, variations in ingredients, and other factors, as the Secretary determines; and `(bb) specify the format and manner of the nutrient content disclosure requirements under this subclause. `(III) REPORTING- The Secretary shall submit to the Committee on Health, Education, Labor, and Pensions of the Senate and the Committee on Energy and Commerce of the House of Representatives a quarterly report that describes the Secretary's progress toward promulgating final regulations under this subparagraph. `(xi) DEFINITION- In this clause, the term `menu' or `menu board' means the primary writing of the restaurant or other similar retail food establishment from which a consumer makes an order selection.' (c) National Uniformity- Section 403A(a)(4) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 343-1(a)(4)) is amended by striking èxcept a requirement for nutrition labeling of food which is exempt under subclause (i) or (ii) of section 403(q)(5)(A)' and inserting èxcept that this paragraph does not apply to food that is offered for sale in a restaurant or similar retail food establishment that is not part of a chain with 20 or more locations doing business under the same name (regardless of the type of ownership of the locations) and offering for sale substantially the same menu items unless such restaurant or similar retail food establishment complies with the voluntary provision of nutrition information requirements under section 403(q)(5)(H)(ix)'. (d) Rule of Construction- Nothing in the amendments made by this section shall be construed-- (1) to preempt any provision of State or local law, unless such provision establishes or continues into effect nutrient content disclosures of the type required under section 403(q)(5)(H) of the Federal Food, Drug, and Cosmetic Act (as added by subsection (b)) and is expressly preempted under subsection (a)(4) of such section; (2) to apply to any State or local requirement respecting a statement in the labeling of food that provides for a warning concerning the safety of the food or component of the food; or (3) except as provided in section 403(q)(5)(H)(ix) of the Federal Food, Drug, and Cosmetic Act (as added by subsection (b)), to apply to any restaurant or similar retail food establishment other than a restaurant or similar retail food establishment described in section 403(q)(5)(H)(i) of such Act.
i) GENERAL REQUIREMENTS FOR RESTAURANTS AND SIMILAR RETAIL FOOD ESTABLISHMENTS- Except for food described in subclause (vii), in the case of food that is a standard menu item that is offered for sale in a restaurant or similar retail food establishment that is part of a chain with 20 or more locations doing business under the same name (regardless of the type of ownership of the locations) and offering for sale substantially the same menu items, the restaurant or similar retail food establishment shall disclose the information described in subclauses (ii) and (iii).
`(vii) NONAPPLICABILITY TO CERTAIN FOOD- `(I) IN GENERAL- Subclauses (i) through (vi) do not apply to-- `(aa) items that are not listed on a menu or menu board (such as condiments and other items placed on the table or counter for general use); `(bb) daily specials, temporary menu items appearing on the menu for less than 60 days per calendar year, or custom orders; or `(cc) such other food that is part of a customary market test appearing on the menu for less than 90 days, under terms and conditions established by the Secretary.
`(xi) DEFINITION- In this clause, the term `menu' or `menu board' means the primary writing of the restaurant or other similar retail food establishment from which a consumer makes an order selection.' `(ii) INFORMATION REQUIRED TO BE DISCLOSED BY RESTAURANTS AND RETAIL FOOD ESTABLISHMENTS- Except as provided in subclause (vii), the restaurant or similar retail food establishment shall disclose in a clear and conspicuous manner-- `(I)(aa) in a nutrient content disclosure statement adjacent to the name of the standard menu item, so as to be clearly associated with the standard menu item, on the menu listing the item for sale, the number of calories contained in the standard menu item, as usually prepared and offered for sale; and `(bb) a succinct statement concerning suggested daily caloric intake, as specified by the Secretary by regulation and posted prominently on the menu and designed to enable the public to understand, in the context of a total daily diet, the significance of the caloric information that is provided on the menu; `(II)(aa) in a nutrient content disclosure statement adjacent to the name of the standard menu item, so as to be clearly associated with the standard menu item, on the menu board, including a drive-through menu board, the number of calories contained in the standard menu item, as usually prepared and offered for sale; and `(bb) a succinct statement concerning suggested daily caloric intake, as specified by the Secretary by regulation and posted prominently on the menu board, designed to enable the public to understand, in the context of a total daily diet, the significance of the nutrition information that is provided on the menu board; `(III) in a written form, available on the premises of the restaurant or similar retail establishment and to the consumer upon request, the nutrition information required under clauses (C) and (D) of subparagraph (1); and `(IV) on the menu or menu board, a prominent, clear, and conspicuous statement regarding the availability of the information described in item (III). `(iii) SELF-SERVICE FOOD AND FOOD ON DISPLAY- Except as provided in subclause (vii), in the case of food sold at a salad bar, buffet line, cafeteria line, or similar self-service facility, and for self-service beverages or food that is on display and that is visible to customers, a restaurant or similar retail food establishment shall place adjacent to each food offered a sign that lists calories per displayed food item or per serving. `(iv) REASONABLE BASIS- For the purposes of this clause, a restaurant or similar retail food establishment shall have a reasonable basis for its nutrient content disclosures, including nutrient databases, cookbooks, laboratory analyses, and other reasonable means, as described in section 101.10 of title 21, Code of Federal Regulations (or any successor regulation) or in a related guidance of the Food and Drug Administration. `(v) MENU VARIABILITY AND COMBINATION MEALS- The Secretary shall establish by regulation standards for determining and disclosing the nutrient content for standard menu items that come in different flavors, varieties, or combinations, but which are listed as a single menu item, such as soft drinks, ice cream, pizza, doughnuts, or children's combination meals, through means determined by the Secretary, including ranges, averages, or other methods. `(vi) ADDITIONAL INFORMATION- If the Secretary determines that a nutrient, other than a nutrient required under subclause (ii)(III), should be disclosed for the purpose of providing information to assist consumers in maintaining healthy dietary practices, the Secretary may require, by regulation, disclosure of such nutrient in the written form required under subclause (ii)(III). `(vii) NONAPPLICABILITY TO CERTAIN FOOD- `(I) IN GENERAL- Subclauses (i) through (vi) do not apply to-- `(aa) items that are not listed on a menu or menu board (such as condiments and other items placed on the table or counter for general use); `(bb) daily specials, temporary menu items appearing on the menu for less than 60 days per calendar year, or custom orders; or `(cc) such other food that is part of a customary market test appearing on the menu for less than 90 days, under terms and conditions established by the Secretary. `(II) WRITTEN FORMS- Subparagraph (5)(C) shall apply to any regulations promulgated under subclauses (ii)(III) and (vi). `(viii) VENDING MACHINES- `(I) IN GENERAL- In the case of an article of food sold from a vending machine that-- `(aa) does not permit a prospective purchaser to examine the Nutrition Facts Panel before purchasing the article or does not otherwise provide visible nutrition information at the point of purchase; and `(bb) is operated by a person who is engaged in the business of owning or operating 20 or more vending machines, the vending machine operator shall provide a sign in close proximity to each article of food or the selection button that includes a clear and conspicuous statement disclosing the number of calories contained in the article. `(ix) VOLUNTARY PROVISION OF NUTRITION INFORMATION- `(I) IN GENERAL- An authorized official of any restaurant or similar retail food establishment or vending machine operator not subject to the requirements of this clause may elect to be subject to the requirements of such clause, by registering biannually the name and address of such restaurant or similar retail food establishment or vending machine operator with the Secretary, as specified by the Secretary by regulation. `(II) REGISTRATION- Within 120 days of enactment of this clause, the Secretary shall publish a notice in the Federal Register specifying the terms and conditions for implementation of item (I), pending promulgation of regulations. `(III) RULE OF CONSTRUCTION- Nothing in this subclause shall be construed to authorize the Secretary to require an application, review, or licensing process for any entity to register with the Secretary, as described in such item. `(x) REGULATIONS- `(I) PROPOSED REGULATION- Not later than 1 year after the date of enactment of this clause, the Secretary shall promulgate proposed regulations to carry out this clause. `(II) CONTENTS- In promulgating regulations, the Secretary shall-- `(aa) consider standardization of recipes and methods of preparation, reasonable variation in serving size and formulation of menu items, space on menus and menu boards, inadvertent human error, training of food service workers, variations in ingredients, and other factors, as the Secretary determines; and `(bb) specify the format and manner of the nutrient content disclosure requirements under this subclause. `(III) REPORTING- The Secretary shall submit to the Committee on Health, Education, Labor, and Pensions of the Senate and the Committee on Energy and Commerce of the House of Representatives a quarterly report that describes the Secretary's progress toward promulgating final regulations under this subparagraph. `(xi) DEFINITION- In this clause, the term `menu' or `menu board' means the primary writing of the restaurant or other similar retail food establishment from which a consumer makes an order selection.' (c) National Uniformity- Section 403A(a)(4) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 343-1(a)(4)) is amended by striking `except a requirement for nutrition labeling of food which is exempt under subclause (i) or (ii) of section 403(q)(5)(A)' and inserting `except that this paragraph does not apply to food that is offered for sale in a restaurant or similar retail food establishment that is not part of a chain with 20 or more locations doing business under the same name (regardless of the type of ownership of the locations) and offering for sale substantially the same menu items unless such restaurant or similar retail food establishment complies with the voluntary provision of nutrition information requirements under section 403(q)(5)(H)(ix)'. (d) Rule of Construction- Nothing in the amendments made by this section shall be construed-- (1) to preempt any provision of State or local law, unless such provision establishes or continues into effect nutrient content disclosures of the type required under section 403(q)(5)(H) of the Federal Food, Drug, and Cosmetic Act (as added by subsection (b)) and is expressly preempted under subsection (a)(4) of such section; (2) to apply to any State or local requirement respecting a statement in the labeling of food that provides for a warning concerning the safety of the food or component of the food; or (3) except as provided in section 403(q)(5)(H)(ix) of the Federal Food, Drug, and Cosmetic Act (as added by subsection (b)), to apply to any restaurant or similar retail food establishment other than a restaurant or similar retail food establishment described in section 403(q)(5)(H)(i) of such Act.
`(III) in a written form, available on the premises of the restaurant or similar retail establishment and to the consumer upon request, the nutrition information required under clauses (C) and (D) of subparagraph (1); and
We note that although declaration of “ complex carbohydrates ” is currently required under the language of the FD&C Act, in promulgating nutrition labeling requirements for packaged foods in 1993, FDA encountered problems with how to define “complex carbohydrates” and how companies would calculate the complex carbohydrate content of packaged foods. Thus, the agency decided to refer to “complex carbohydrates” as “other carbohydrates” and deemed the declaration of “other carbohydrates” to be voluntary. We anticipate that FDA will adopt the same approach with respect to restaurant foods. Similarly, although declaration of “ trans fat ” is not required under the language of the FD&C Act, FDA subsequently mandated the declaration of “ trans fat” for packaged foods via rulemaking. Again, we anticipate that FDA will adopt the same approach with respect to restaurant foods. Section 4205 provides that FDA may, by regulation, require written disclosure of additional nutrients for the purpose of providing information to assist consumers in maintaining healthy dietary practices. 21 U.S.C. 343(q)(5)(H)(vi).
`(iii) SELF-SERVICE FOOD AND FOOD ON DISPLAY- Except as provided in subclause (vii), in the case of food sold at a salad bar, buffet line, cafeteria line, or similar self-service facility, and for self-service beverages or food that is on display and that is visible to customers, a restaurant or similar retail food establishment shall place adjacent to each food offered a sign that lists calories per displayed food item or per serving. `(v) MENU VARIABILITY AND COMBINATION MEALS- The Secretary shall establish by regulation standards for determining and disclosing the nutrient content for standard menu items that come in different flavors, varieties, or combinations, but which are listed as a single menu item, such as soft drinks, ice cream, pizza, doughnuts, or children's combination meals, through means determined by the Secretary, including ranges, averages, or other methods.
`(v) MENU VARIABILITY AND COMBINATION MEALS- The Secretary shall establish by regulation standards for determining and disclosing the nutrient content for standard menu items that come in different flavors, varieties, or combinations, but which are listed as a single menu item, such as soft drinks, ice cream, pizza, doughnuts, or children's combination meals, through means determined by the Secretary, including ranges, averages, or other methods.
`(iv) REASONABLE BASIS- For the purposes of this clause, a restaurant or similar retail food establishment shall have a reasonable basis for its nutrient content disclosures, including nutrient databases, cookbooks, laboratory analyses, and other reasonable means, as described in section 101.10 of title 21, Code of Federal Regulations (or any successor regulation) or in a related guidance of the Food and Drug Administration. These means of determining “reasonable basis” are based upon FDA’s current requirements for restaurants to determine nutrient values when making nutrient content claims for restaurant food. See 21 C.F.R. § 101.10; see also 61 Fed. Reg. 40320 (Aug. 2, 1996). In addition, in its rulemaking on nutrient content claims for restaurant food, FDA “recognized that there are sources of variation unique to restaurant foods ( e.g., methods of preparation).” Id. at 40323. As such, FDA intentionally “included a number of provisions to provide flexibility in how these requirements can be met in the restaurant situation.” Id.
In additional to affording restaurants flexibility in determining nutrient values by requiring that they have a “reasonable basis” for declaring such values, in implementing the menu labeling legislation, FDA is expected to provide additional flexibility for restaurants and similar retail food establishments. Specifically, the statute directs FDA to consider the following when promulgating regulations: Standardization of recipes and methods of preparation; Reasonable variation in serving size and formulation of menu items; Space on menus and menu boards; Inadvertent human error; Training of food service workers; Variations in ingredients; and Other factors as determined by the Secretary.
`(viii) VENDING MACHINES- `(I) IN GENERAL- In the case of an article of food sold from a vending machine that-- `(aa) does not permit a prospective purchaser to examine the Nutrition Facts Panel before purchasing the article or does not otherwise provide visible nutrition information at the point of purchase; and `(bb) is operated by a person who is engaged in the business of owning or operating 20 or more vending machines, the vending machine operator shall provide a sign in close proximity to each article of food or the selection button that includes a clear and conspicuous statement disclosing the number of calories contained in the article.
`(ix) VOLUNTARY PROVISION OF NUTRITION INFORMATION- `(I) IN GENERAL- An authorized official of any restaurant or similar retail food establishment or vending machine operator not subject to the requirements of this clause may elect to be subject to the requirements of such clause, by registering biannually the name and address of such restaurant or similar retail food establishment or vending machine operator with the Secretary, as specified by the Secretary by regulation. `(II) REGISTRATION- Within 120 days of enactment of this clause, the Secretary shall publish a notice in the Federal Register specifying the terms and conditions for implementation of item (I), pending promulgation of regulations. `(III) RULE OF CONSTRUCTION- Nothing in this subclause shall be construed to authorize the Secretary to require an application, review, or licensing process for any entity to register with the Secretary, as described in such item. c) National Uniformity- Section 403A(a)(4) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 343-1(a)(4)) is amended by striking `except a requirement for nutrition labeling of food which is exempt under subclause (i) or (ii) of section 403(q)(5)(A)' and inserting `except that this paragraph does not apply to food that is offered for sale in a restaurant or similar retail food establishment that is not part of a chain with 20 or more locations doing business under the same name (regardless of the type of ownership of the locations) and offering for sale substantially the same menu items unless such restaurant or similar retail food establishment complies with the voluntary provision of nutrition information requirements under section 403(q)(5)(H)(ix)'.
ON THE NEXT SLIDE I WOULD ADD A SCREEN SHOT OF OUR INGREDIENT PAGE…JUST SO THEY KNOW WHAT WE OFFER
2 Ways to calculate nutrition facts: chemical in a laboratory or by calculation like we do with MenuCalc.