Time's up: FDA takes final step toward menu labeling

Time is up; the FDA has released its guidelines on menu labeling legislation, which means restaurants can no longer procrastinate when it comes to posting nutritional information. When the FDA officially releases its Notice of Availability for the document — expected this month — the compliance deadline will be a year from that date.

Let's be honest, this was a long time coming. It’s been over six years since menu-labeling guidelines were initially signed into law in 2010. Now is the time to get your recipes in order and analyzed because the excuse of being unprepared or uninformed is no longer viable.

In releasing its final guidance, the FDA has made a few changes. We have outlined some of the biggest ones below:

1. Governing agency: The FDA is now the organization delegated to enforce menu-labeling guidelines and will likely call on state and local health departments to help govern the legislation as well. The FDA states in its final guidance that foods without proper nutrition labeling would be deemed misbranded and would be subject to the same penalties that misbranded packaged foods must abide by. The FDA will start the enforcement process by requesting for voluntary compliance from establishments, then may condemn or seize food that is deemed misbranded. If the issue is not corrected the FDA then may take further legal action.

2. Certifications: The FDA is requiring two levels of certifications: one from the corporate level stating the reasonable basis behind its nutritional values and one from the individual store level to certify that they are abiding by the preparation methods used as part of the nutritional analysis.

3. Pizza slices: Unfortunately, the FDA didn't budge when it came to labeling pizza slices. If uniform, triangular cuts aren't offered, then calories must be listed for the entire pizza. That means a circular pizza cut into squares must list the number of calories for the full pizza, since the size of the square can vary (think the bigger inside piece vs. the small triangles on the outside). We were hoping for some extra wiggle room for our pizza partners; however, at least now everyone knows where they stand.

4. Pizza toppings: For those of you that put smaller amounts of each topping on a pizza with the more toppings someone orders, the FDA is requiring an additional statement for your menus, menu boards and additional nutrition information. While we always knew that you must list the calories for a one-topping pizza amount, you must also make that statement on your materials. For example, on your menu you would have, "Pepperoni - 200 calories for one-topping pizza." This must also be on your additional nutrition information.

5. Variable ingredients in the same menu item: The FDA had previously stated that any variable menu items that were explicitly called out on the menu (such as different flavors) must have individual calorie disclosures. However, it seems it backed off this a little bit in the final guidance. The FDA provides an example of a grilled cheese that can come with cheddar, Swiss or Colby cheese. Previously, we would have assumed that there would be three individual calorie statements on the menu since the three cheeses are listed separately. However, in its response, the FDA said that a range of calories for the grilled cheese is an acceptable way to label it.

6. Alcohol:Yes, alcohol must still be labeled. However, there was some gray area in the initial guidelines regarding beer on tap and whether or not calories would need to be labeled on the tap handles. The FDA cleared this up and it will NOT be required to list the beer calories on the tap.

7. Substantiating your information: If a health official comes into your establishment and requests all of the pertinent information to substantiate your posted nutrition information, the FDA has officially defined how long you have to do so. In the final guidance, this is defined as four to six weeks.

I have often recommended a third-party provider for this menu analysis, and my opinion on this remains unchanged. Third-party providers have the technology tools necessary to provide precise and accurate menu analysis and also should be able to quickly analyze new menu items or ingredients as things change. These providers should also be able to provide the necessary certifications for backing up any labeling claims.