Along with spring showers, the month of May has brought with it a flurry of FDA action related to the labeling of food product. On Friday, FDA announced that it has finalized a new Nutrition Facts label. On May 10, FDA announced its intent to reevaluate its regulation of nutrient content claims (including the term “healthy”). And, on May 5, FDA provided further guidance to restaurants on how to comply with menu labeling requirements through FDA’s Guidance for Industry: A Labeling Guide for Restaurants and Retail Establishments Selling Away-From-Home Foods -- Part II.
We will address FDA’s reevaluation of the Nutrition Facts label and nutrient content claims in a forthcoming client advisory. In this post, we would like to discuss an important nugget embedded in FDA’s recent guidance regarding the labeling of “away-from-home foods”--specifically, in the world of tweets, posts, and vines--what constitutes a menu?
As background, FDA’s Labeling Guide for Away-From-Home Foods is intended to help “covered” establishments (restaurant chains with 20 or more locations that offer substantially the same menu items) understand the nutrition-related menu labeling rules that apply to “restaurants or similar retail establishments.” As established by the menu labeling provision of the Affordable Care Act of 2010, a food sold in covered establishments must include calorie labeling on the menu or menu board adjacent to the name or the price of the standard menu item (or, in the case of self-service foods and foods on display that are not listed on the menu or menu board, in “a manner in close proximity and clearly associated with the standard menu item”).
FDA’s definition of a “restaurant or similar retail establishment” is broad; it includes bakeries, cafeterias, coffee shops, convenience stores, delicatessens, food service facilities and concession stands located within entertainment venues (such as amusement parks, bowling alleys, and movie theatres), food service vendors (such as ice cream shops and mall cookie counters), food takeout or delivery establishments (such as pizza takeout and delivery establishments), grocery stores, retail confectionary stores, superstores, quick service restaurants and table service restaurants.
Interestingly, FDA’s recent guidance reminds companies that FDA’s definition of a “menu” is broad too.