If you are the franchisor of an emerging and growing restaurant franchise and you haven’t already complied with the Food and Drug Administration’s (“FDA”) menu labeling requirements, then it’s time to start evaluating your obligations and options before more franchisees commit to menu boards and build-outs that may not be in compliance.
• Restaurant Franchises with 20 or More Units – The rule applies to restaurants and “similar food establishments” that are part of a chain with 20 or more locations doing business under the same name. So, if you are a restaurant franchisor, application of this rule to your system is not a question of “if” it applies but rather a question of “when.” Well before 20 units, planning will need to be put into implementation and menu boards for existing franchisees may have to be retrofitted with compliant menu disclosures.
• Standard Menu Items – The menu labeling requirements apply to “standard menu items.” Standard menu items are menu items that are “routinely included on a menu or menu board or routinely offered as a self-service food or food on display.”
• Variable Menu Items – The menu labeling requirements apply to “variable menu items.” Variable menu items are menu items that qualify as “standard menu items” but that come in different flavors, varieties, or combinations and are listed as single menu items.
• Temporary Menu Items – The menu labeling requirements do NOT apply to temporary menu items, which are menu items that “appear on a menu or menu board for less than a total of 60 days per calendar year.” The 60 days includes each day on the menu board and need not be consecutive days.
Summary of FDA’s Menu Labeling Requirements:
• Generally: Calorie Disclosure Obligations – The number of calories contained in each standard menu item must be displayed on the menu and menu board. As to variable menu items, calories must also be disclosed, but the method of disclosure varies depending on how the variable menu items are listed on the menus and menu boards.
• Standard Menu Items: Calorie Disclosure – For standard menu items, the number of calories must be listed adjacent to the name or the price of the associated menu item in a type size no smaller than that of the menu item or price or the associated menu item (whichever is smaller). Also, calorie information must be in the same color and as conspicuous as all other menu information. Reference to calories may be by using the word “calories” or the abbreviation “cal” and may be used as the heading above a column of calorie declarations.
• Variable Menu Items: Calorie Disclosure – In addition to the requirements imposed for standard menu items, there are additional requirements for variable menu items:
– When the menu or menu board lists flavors or varieties for an entire individual variable menu item, the calories must be declared separately for each listed flavor or variety; and
– When the menu or menu board does not list flavors or varieties for an entire individual variable menu item, and only includes a general description of the variable menu item, the calories must be declared for each option with a slash between the two calorie declarations where only two options are available or as a range when more than two options are available.
There are other variations as to variable menu items.
• Serving Sizes – When dealing with combination menus and menu items that represent multiple serving sizes, additional disclosure requirements exist as to serving sizes.
Next Steps for Achieving Compliance:
• As a growing restaurant franchise, you must start implementing a plan for ensuring that your menu boards and menus comply with the FDA requirements.
• The FDA guidelines are extensive. While this article summarizes some of them, there are many more and many variations. Plan to review your existing menu configuration and menu items with your legal or franchise counsel. Review the FDA Menu Labeling Regulations in detail.
• In addition to federal law, many states and local municipalities have implemented additional labeling requirements. So be sure to evaluate the local jurisdictions in which your franchisees are located.