Washington Report: FDA Postpones Menu Labeling Requirement — Again

Video Produced by Denise Toledo

The seven-year journey to menu labeling is once again hitting another hurdle. Initially proposed in 2010 along with the Affordable Care Act, this federal mandate, which would enforce that all food establishments of 20 locations or more would be required to list calorie information on menu boards and menus, was supposed to take effect this Friday.

However, the U.S. Food and Drug Administration has postponed it again — for the third time. Original deadlines for 2015 and 2016 were pushed off the plate, but the new deadline for food businesses to be transparent with calorie information is May 7, 2018

Prior to the delay announcement earlier this Monday, the National Restaurant Association encouraged the successful implementation of this law, seeing the federal requirement as the final say among a mix of conflicting regional rules and as a protection to small businesses.

"The National Restaurant Association strongly cautions against any actions that would delay implementation of the menu labeling law. Previously, menu labeling laws were being passed on a state-by-state or city-by-city basis and in some cases, counties were competing with cities to pass similar laws," Cicely Simpson, Executive Vice President of Government Affairs & Policy, said in a release. "If the federal standard is repealed, we will once again return to this patchwork approach that will be even more burdensome for restaurants to implement and will not have the legal safeguards included in the federal law. We must protect small businesses by not delaying implementation of this important rule.” 

While the rule first came about to give consumers more education and information on the nutrition of their meals, allowing them to perhaps make alternative choices if they are able to see their fat, sodium, sugar, cholesterol intake, multiple trade groups criticized the rule, saying it did not provide enough flexibility for food sellers that weren't restaurants.  

"I think the delay happened because...the menu-labeling requirements were burdensome to business owners who owned twenty locations. It would have been very expensive for owners to accomplish and most likely not have been successful. The National Restaurant Association wanted it put in place now to alleviate jurisdiction battles across the country. The FDA has delayed to gather further comments and input from the public. This was a smart decision in my opinion," said William Bender, Rock My Restaurant host and founder of restaurant consulting firm W.H. Bender & Associates.

According to Chicago Tribune, a single menu board can cost anywhere from $500 to $2,000, and those costs add up, depending  on the size of the chain. Naf Naf Grill, for example, paid $17,000 for new menu boards. Bender also noted that poorly designed menu labeling could be a barrier to sales, saying that the data has to be designed and presented in a guest- and brand-friendly way.

"My advice to operators is they should prepare and design their menu ingredients — and recipes — to provide guest information and market to help achieve their brand’s strategic marketing plan. All decisions from menu development, sourcing ingredients, purchasing, distribution to delivery need to be transparent. Training is essential to teach the food culinary team and sales service team the correct information, so that all brand ServPoints™ are delivered to Guest accurately and professionally. Then we are in a win-win situation and relationship with guests," he said.

Dining

On the other hand, several national chains have supported the federal rule to remove the complications of adjusting to different city, county, and state regulations. Major brands such as McDonald's, Chipotle, Dunkin Donuts, Panera Bread, and Starbucks have been fulfilling the requirement ahead of the May 2017 deadline, and even movie theaters were preparing to meet the compliance deadline.

This is a movement Jaclyn Morgan, principal of JM Foodservice Consulting, LLC., agrees with. 

"A restaurant, as a food company, has always carried a burden to supply customers with nutritional information. Ingredient and calorie count information could be stored in a recipe book or within a database in the past.  Now, it needs to be readily available on menus for chains with 20 or more locations as a means of full-disclosure. Many chains have been following this practice for years, and others have met the new standard earlier than the deadline. So, why the delay?" she said, and added that it's workable even for grocery stores.

"Chain grocers and chain convenience stores employ dietitians and executive chefs. Commissaries that produce sandwiches, salads, and more en masse for these establishments have the tools to label ingredients accurately. If there is a recipe of ingredients as well as a knowledge of calories for each ingredient, a calorie count per serving can be mathematically derived. This easily translates to food labels, as well as menu boards.  It’s an investment that we have been prepared for since 2010."

Still, she understands that there are valid arguments on several challenges for implementation, especially for pizza brands. The American Pizza Community, which called for more flexible menu labeling, stated that updating menu boards with calorie information could cost an individual pizza store between $3,500 to $5,500 annually. Crusts, sauces, toppings, and sizes vary drastically, but Morgan still believes it is mathematically achievable. She recommends that because pizza chains portion out toppings for standard items, an algorithm could be close.

"This is the new face of food as politics. The labeling requirements were born as part of the ACA with the intent to reduce obesity in America.  The thought was that people would shy away from foods high in calories and saturated fats as we became more conscious of our individual intake. ...It is a push back for large businesses to save money, even if contrary to public health and nutrition disclosure," Morgan said.

As of today, the FDA is opening another public discussion on the regulations, asking particularly for "approaches to reduce regulatory burden or increase flexibility," as well as recommendations on providing calorie information outside of a menu. Clearly, the reactions to this regulation delay are mixed, and according to the Times-Picayune, the studies on the effectiveness of menu labeling is mixed, as well. Calorie information may reduce purchase in some areas and have minimal impact on others.

Will menu labeling have true real-world behavior change? And how effectively will consumers apply this vast wealth of nutrition information, along with a more transparent restaurant industry that shares its sourcing and food preparation? How much will purchasing habits really transform?

"We all have wondered how much fat, sugar, or calories a dish has at some point during our adulthood. The reason for calorie menu labeling might be the increase in health issues linked with the amount of dining out. The government stepping in is a bit much, as they might seek even more regulations and even taxing for fatty or salty food, much like the sugar tax," Salar Sheik, founder of Savory Hospitality, said.

"All forms of restaurant have increasing challenges on the daily with food cost, labor, marketing, and the list goes on. When will they draw the line with all the hurdles for the operator is the real question that no one can answer. We all have to be prepare, and many are with smaller portions and lighter items, which are lower in fat and calories. The upside will be the restaurants that have been aware of the calorie count can now have a better selling and marketing platform."