Counting calories on menus

by Jay Sjerven
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WASHINGTON — The Food and Drug Administration on July 7 opened a 60-day public comment period to solicit views on how it should implement the section in the Patient Protection and Affordable Care Act of 2010 that requires chain restaurants and similar businesses to disclose nutrient content information for standard menu items appearing on restaurant menus and menu boards. The legislation requires the F.D.A. to issue proposed regulations to carry out the section no later than March 23, 2011, or one year after the law’s enactment. Those regulations then will be finalized through a formal rulemaking process.

Section 4205 of the health care act requires chain restaurants and similar retail food establishments with 20 or more locations doing business under the same name and offering for sale substantially the same menu items to disclose nutrient content information for standard menu items appearing on restaurant menus and menu boards. It also requires vending machine operators that own or operate 20 or more machines to disclose nutrient content information for certain foods sold from vending machines.

Some menu items are excluded from nutrient disclosure on menus or menu boards, including condiments or items placed on the table or counter for general use, daily specials or other temporary menu items appearing on a menu for fewer than 60 days per year, food that is part of a customary market test and appearing on a menu less than 90 days under terms to be established by the Secretary of Health and Human Services, and custom orders.

Vending machine operators must provide a sign in close proximity to each food item or to the selection button that includes a “clear and conspicuous statement disclosing the number of calories contained in the article” unless the vending machine permits a prospective purchaser to examine the Nutrition Facts Panel before buying or otherwise provides “visible nutrition information at the point of purchase.”

The new law directs the F.D.A. in preparing proposed regulations to implement the section to “consider standardization of recipes and methods of preparation, reasonable variation in serving size and formulation of menu items, space on menus and menu boards, inadvertent human error, training of food service workers, variations in ingredients and other factors as the secretary determines,” and “specify the format and manner of the nutrient content disclosure requirements.”

Section 4205 enjoyed broad support among consumer groups, medical associations and even restaurateurs. Representing the latter group, the National Restaurant Association dropped its opposition to national menu labeling regulations as several states and even municipalities in recent years enacted their own regulations on nutrient content disclosure.

“This law creates a uniform, national standard for providing nutrition information to restaurant patrons and immediately preempts the confusing patchwork of state and local menu labeling laws,” said Dawn Sweeney, president and chief executive officer of the National Restaurant Association speaking in April before the 2010 Nutrition Summit in Washington, convened by the Departments of Health and Human Services and Agriculture. “It provides consumers with the information they need to meet their individual dietary needs. We look forward to working with the F.D.A. and consumer and industry groups to implement this law.”

The F.D.A. requested comments on all aspects of Section 4205 and its implementation. As of this writing, most comments available for review were posted by individual citizens and not associations. Comments ran the gamut from those supporting the law as written; consumers stating they wanted even more information on menus, such as whether foods were derived from bioengineered crops or whether non-meat items contained meat-derived ingredients; to those who view any government regulation as costly and intrusive.

One comment was from a food business owner who viewed menu nutrient labeling as a positive but was concerned about what would be the timeframe for implementing the regulations, their cost and what structure would be in place to consider “potential future disclosure standards” as this may affect the “financial stability of the industry.”

Those wishing to submit comments on Section 4205 may do so on-line at The docket number is FDA-2010-N-0298.

Sorting through the specifics Section 4205 of the health care act requires chain restaurants and similar businesses to:

Display on menus and menu boards the number of calories next to the listing for each standard menu item as usually prepared and offered for sale.

Include on each menu or menu board, posted prominently, a succinct statement concerning suggested daily caloric intake.

Provide in written form on request nutrition information relating to per-serving information with respect to amount of calories, total fat, saturated fat, cholesterol, sodium, total carbohydrates, complex carbohydrates, sugars, fiber and total protein.

Provide a clear and prominent posting on menus or menu boards advising customers such written information is available.

In case of self-service food operations, include a sign adjacent to each food item that lists calories per displayed food item or per serving.

Base nutrient content disclosures on sources described in Title 21 of the Code of Federal Regulations or related F.D.A. guidance.

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