Labeling helps consumers make informed and healthful decisions about meals and snacks, especially important since Americans are eating and drinking nearly 1/3 of their calories away from home. New FDA regulation labeling will be consistent nationwide and will provide easy-to-understand nutrition information in a direct and accessible manner.

1. Tiny Print Makes a Big
Difference
PACKAGING & MENU LABELING
PRESENTED BY: PATRICK WARTAN

2. About Me
Patrick Wartan
Attorney and Chair of the Food and Beverage Practice Group at Taft Stettinius & Hollister LLP
Email: PWARTAN@TAFTLAW.COM
Phone: 312-836-4131

3. Restaurant Menus

4. False Advertising
Babaian et al v. Dunkin’ Brands
Chen et al v. Dunkin Brands
Forouzesh et al v. Starbucks
Bazzi v. Little Caesar Enterprise

5. Menu Falsities
Lobster-gate

6. Mislabeling Products
Imposter Shrimp

7. Calorie Information

8. Packaged Goods

9. Some (but not all) Bureaucracies
Federal
 United States Department of Agriculture
 Food and Drug Administration
 Food, Drug, and Cosmetic Act
 Nutrition Labeling and Education Act (NLEA)
 Title 21 of the Code of Federal Regulations (CFR)
 Food Allergen Labeling and Consumer Protection Act of 2004
 Federal Trade Commission
 Fair Packaging and Labeling Act
 Alcohol and Tobacco Tax and Trade Bureau (TTB)
 Federal Alcohol Administration Act
States
 Illinois Food Handling Regulation Enforcement Act
 Administrative Code – Food, Drug, and Cosmetic Code
 Illinois Liquor Control Commission

10. Package Label -
Mandatory Requirements
Statement of identity
Net quantity statement
Manufacturer, packer, or distributor contact information
Ingredient list
Nutrition information
Allergen information

11. Labeling Panels –
Principal Display Panel (PDP)
•Statement of Identity
• Name of the food product (i.e. Rice, Tomato Soup, etc)
• Common (usual) names must be used when the food has a common name
• Imitation:
• A new food which contains less protein or less essential vitamins must be labeled as an imitation
• If required, must be the same type size and prominence of the name of the food imitated
• Must be bold and prominent – at least 50% of the height of the next largest text
• Product name can be more prominent than actual name
• “Snack’ems” vs. “Rice Crackers”
• Brand name must be less prominent than the food name.
• Must describe the form of food (i.e. whole, half, sliced, etc)

12. Labeling Panels –
Principal Display Panel (PDP)
•Net Quantity Statement
• Must be in weight, measure, or numeric count (i.e. 5 crackers).
• Weight -> US and metric
• Location:
• Placed in the bottom 30% of the PDP
• Packing Mediums:
• Net Weight 14 oz (Beans 9 oz, Water 4 oz, and Sugar 1 oz)
• * If packing medium is normally discarded, the drained weight is given (i.e.
olives and mushrooms)
• Type Size:
• Determined by area of PDP
PDP AREA Minimum Font Size
Less than 5 in 1/16 in
5 in – 25 in 1/8 in
25 in – 100 in 3/16 in
100 in – 400 in 1/4 in
Greater than 400 in 1/2 in

13. Labeling Panels -
Information Panel
•Generally
• Name and address of manufacturer, packer, or distributor; Ingredient list; Nutrition facts; and Allergen
labeling
• Sell by date
• Manufacturing / Lot numbers
• Font: 1/16 inch (1.6mm) tall and not more than 3x each letters width
• Sufficient contrast and legible
• Must be in English – if in a foreign language, must then be translated
• Artwork cannot be misleading or distract from the required label statements
• Location:
• Immediately to the right of the PDP
• No intervening material

14. Labeling Panels -
Information Panel
• Name and Address of Manufacturer, Packer, or Distributor
• Indicate relationship (i.e. manufactured by, distributed by, etc)
• Name, city, and state
• MUST include street address if not listed in current telephone directory

15. Labeling Panels -
Information Panel
• Ingredient List
• Organized by weight
• Sub-ingredients listed with parentheses or together with main ingredients
• MUST be listed on same panel as address information

16. Labeling Panels -
Information Panel
• Nutrition Facts
• Previous Format (Acceptable for manufacturers with less than $10mm in food
sales until January 1, 2021)
• Font:
• Nutrition facts: Largest text and at least 8 point font
• Must extend the width of the panel
• Table Headings: 6 point font
• Key nutrients: 8 point font
• Updated Format
• Numerical values of Calories is largest in the nutrition facts table
• Must indicate any added sugars
• Vitamins A & C are no longer listed
• Serving sizes are “more realistic”
• Exceptions:
• Restaurants, delicatessen-type food, no significant nutrition, instant
formula, and dietary supplements.

17. Labeling Panels -
Information Panel
• Nutrition Facts
• Side-by-Side Format
• Labeling area is greater than 40 in
• Linear Format
• Labeling area is less than 40 in
• Use abbreviations for key nutrients
• Place the nutrition facts on any panel
• Vertical Format
• Insufficient vertical space
• “Not a significant source of”
Nutrient Less Than
Fat Cal 0.5g
Sat Fat 0.5g
Trans Fat 0.5g
Cholest 2mg
Sugar 1g
Vitamin A or C,
Calcium, or Iron
2% RDA

18. Labeling Panels -
Information Panel
• Allergen Labeling
• Must list “major food allergens”
• Account for 90% of food allergies
• Milk, egg, fish, crustacean shellfish, tree nuts, wheat, peanuts, and soybeans
• Mulluscan shellfish exempt – oysters, clams, mussels, and scallops
• Specific declarations / Common name
• Tree Nuts – almonds, pecans, or walnuts
• Fish – bass, flounder, or cod
• Crustacean shellfish – crab, lobster, or shrimp
• Restaurants NOT exempt
• Foods packaged by a retail or foodservice establishment must be labeled
• Effective January 1, 2006

19. Juices
• Must include a % of juice declaration along with the common name (i.e. 100% Apple Juice)
• Exception:
• Product is described as “flavored”,
• Term juice is not used other than in the ingredient list, and
• Does not otherwise give the impression they contain juice
• Location:
• Information Panel – near the top
• Only the brand name, product name, logo, or UPC can be above it
• Font: Not less than the largest font in the Information Panel – except brand name, product name, logo, UPC, or phrase “Nutrition
Facts”
• Juice or Beverage?
• Less than 100% juice must be qualified as “beverage,” “drink,” or “cocktail”

20. Alcohol

21. A Brief History –
Tied Houses

22. Where Are We Today –
The Three-Tier System
What Was the Motivation?

23. Alcohol Labels –
Distilled Spirits

24. Alcohol Labels –
Malt Beverage

25. Alcohol Labels –
Wine

26. Allergen Labeling
• Voluntary disclosure of:
• Milk, eggs, fish, crustacean shellfish, tree nuts, wheat, peanuts, and soybeans
• Proposed rule pending seeking to require mandatory disclosure

27. Creative (and legal) Tips
for Restaurant Menus

28. Creative Tips
1. Limit Options
2. Add Photos
3. Creative Pricing
4. Expensive Decoys
5. Visual Cues
6. Utilize Colors
7. Fancy Language
8. Leverage Nostalgia

29. Questions?

30. Thank you.
ANY QUESTIONS – EMAIL ME AT PWARTAN@TAFTLAW.COM OR CALL
MY DIRECT LINE AT 312-836-4131