Food and Drug Administration Releases Menu Labeling Guidance Document

Earlier this month, The Food and Drug Administration released a non-binding guidance document pertaining to its menu labeling rule set to go into effect in May of 2018. The menu labeling rule extends requirements to disclose calorie and nutritional information to some convenience stores, retail food establishments and restaurants that serve ready-to-eat prepared foods.

One of the primary challenges associated with the FDA’s menu labeling rule has been identifying what is considered a covered establishment under the rule. FDA’s guidance document defines a covered establishment as one that meets the four requirements outlined below:

• Have 20 or more locations (with the term location referring to a fixed position or site);
• Be doing business under the same name (regardless of the type of ownership, such as individual franchises). When the term “name” refers to the name of the establishment presented to the public, the term “same” includes names that are slight variations of each other, due to things such as the region, location, or size (e.g., “ABC” and “ABC Express”);
• Sell substantially the same menu items; and
• Sell restaurant-type foods (defined, in part, as food that is usually eaten on the premises, while walking away, or soon after arriving at another location).

While most PMCI members will be excluded from the scope of the rule by the 20 or more locations criteria above, PMCI members operating a single store under a brand name may fall within the scope of the rule depending on how the name of the establishment is presented to the public. Pages 32 and 33 of the FDA Menu Labeling Guidance Document attempt to provide more clarity to that question.

Additionally, last week, PMAA General Counsel Al Alfano released a more detailed explanation of which establishments are required to comply with the menu labeling rule which will go into effect in May 2018.

Please contact the PMCI office if you have questions about the FDA menu labeling rule.