Last week, the FDA published a final rule in the Federal Register that mandates calorie and nutrition information be listed on menus and menu boards to certain restaurants and retail food establishments. The requirements, which go into effect on December 1, 2015, extend to restaurants and retail food establishments that are part of a chain of 20 or more locations (where location means a fixed position or site) that do business under the same name and offer for sale substantially the same menu items. Such establishments are required to include calorie and nutrition information for standard menu items (which FDA defined to mean a restaurant-type food that is commonly included on a menu or menu board food or frequently offered as food on display and self-service food). Restaurants and retail establishments that do not otherwise fall under the requirements of this new rule may elect to become subject to these rules by registering with the FDA every other year. The final rule is the Agency’s attempt to combat the country’s obesity epidemic by confronting consumers with actual calorie counts on meals or food consumed outside of the house.
What has come as a surprise to many is that the new rule actually includes alcohol beverages, which were not included in the proposed rule. In other words, a food establishment falling within the new rule would be required to declare calorie count of an alcohol beverage on its menu (with some exceptions). For restaurateurs whose revenues may depend on or thrive off of alcohol sales, declaring alcohol calorie counts may come as a particularly unpleasant surprise.
While one comment asserted that
[E]stablishing menu labeling requirements for alcoholic beverages could lead to inconsistencies with TTB requirements. One comment pointed out that TTB has rulemaking underway for ‘‘serving facts’’ on alcoholic beverage labels and asserted that, if FDA establishes menu labeling requirements for alcoholic beverages, there could be inconsistencies between nutrition information on labels and menus
and while FDA countered that
[T]he nutrition labeling requirements finalized here do not apply to and have no effect on the labels of alcoholic beverage containers. In addition, the new requirements apply to covered establishments, not to alcoholic beverage manufacturers. In contrast, TTB’s ‘‘Serving Facts’’ rulemaking would establish new requirements for disclosures on alcoholic beverage labels and would apply to alcoholic beverage bottlers and importers
it is curious to consider how, in practice, the disclosure of an alcohol beverage’s calories or nutritional information may translate. 79 Fed. Reg. 71156 (Dec. 1, 2014). Currently, TTB does not require calorie nor nutritional disclosure on the labels of alcohol beverage products falling within its jurisdiction (with few exceptions, such as if the product makes a calorie or carbohydrate claim or statement). And whereas the FDA is not requiring a TTB-regulated manufacturer or importer change its labels, the FDA is asking retail establishments, such as restaurants, that sell such alcohol beverage products to provide information on the product’s calorie count and nutrition that is not currently available on most alcohol labels. The agency indicates, in its response to the comments for the final rule, that a covered establishment will have “significant flexibility in choosing a reasonable basis for their nutrient content disclosures, which can include a database such as the USDA’s National Nutrient Database for Standard Reference.” Id. Perhaps some of this is foreshadowing what is to develop on TTB’s end with respect to serving facts.
Foods that the final rules specifically excludes from the rule’s nutrition and calorie requirement include the following:
- Foods that are not standard menu items, such as condiments, daily specials, and temporary menu items;
- Food that is part of a customary market test;
- Self-service food;
- Food on display that is available for sale for less than 60 days per calendar year or fewer than 90 consecutive days (in order to test consumer acceptance); and
- Alcohol beverages that are food no display and not self-service food (such as bottles behind the bar used to prepare mixed drinks).
For more information on wine or alcohol law, labeling, or FDA or TTB matters, please contact Lindsey Zahn.
DISCLAIMER: This blog post is for general information purposes only, is not intended to constitute legal advice, and no attorney-client relationship results. Please consult your own attorney for legal advice.