The US Food and Drug Administration finalized its rules requiring the listing of calorie information on menus and menu boards of certain food sellers. The rules apply to chains with at least 20 units operating under the same name (irrespective of the ownership structure) and vending machines with at least 20 locations.

The new rules implement requirements in Obamacare (the Patient Protection and Affordable Care Act of 2010), and are part of the government’s effort to fight obesity. They will pre-empt existing state laws covering the same types of foods and establishments, unless the state laws areidentical to the federal rules.

The rules cover quick service and casual dining restaurants, cafes and coffee shops, convenience stores, pizza parlours, ice-cream shops, bakeries and any other similar venue and apply to beverages, including alcoholic beverages served as standard menu items.

Calorie counting

Food retailers must provide the number of calories adjacent to the name or the price of the associated standard menu item, in a type size no smaller than the name or price, and with the same color and against the same or similar contrasting background.

Calories for standard menu items that are self-service or on display must be shown on signs adjacent to such foods and must disclose the serving size or discrete units used to determine the calories, e.g., per handful, per scoop, per item, per slice, etc.

Beverages must be shown based on the number of fluid ounces in the serving cup and, if applicable, the description of the cup size.

Nutrition labelling

Each menu and menu board must contain the following succinct statements regarding daily calorie intake. For menus aimed at adults:

  • “2,000 calories a day is used for general nutrition advice, but calorie needs vary.”

For menus targeted at children:

  • “1,200 to 1,400 calories a day is used for general nutrition advice for children ages 4 to 8 years, but calorie needs vary”; or
  • “1,200 to 1,400 calories a day is used for general nutrition advice for children ages 4 to 8 years and 1,400 to 2,000 calories a day for children ages 9 to 13 years, but calorie needs vary.”

These statements must appear at the bottom of each menu page and on the bottom of the menu board. There are requirements regarding font size, color and contrast background similar to those for calorie disclosures.

Food retailers must also provide consumers with detailed nutritional information upon request , including total calories, calories from fat, total fat, saturated fat, Trans fat, cholesterol, sodium, total carbohydrate, dietary fibre, sugars, and protein (g).

Covered food retailers must comply by December 1, 2015 and FDA has published guidance documents to facilitate compliance.

Foods not appropriately labelled by this date will be deemed misbranded food under the Food, Drug, and Cosmetic Act. Introducing a misbranded food into commerce in the US is a prohibited act under the FD&C Act, subject to injunction and civil penalties.

Global implications

As US regulations often drive global trends, it may not be long before similar labelling requirements appear in other jurisdictions.

For example, Australia and the US share a common legal framework, and Australia tends to follow the US in most things – including having an obesity problem and seeing legislation as the way to address most problems. We anticipate legislation in Australia that matches this recent development in food labelling in the US.

In the event Australia and others enact similar regulations, one hopes they will apply to all food retailers – not just chains and franchise networks with more than 20 stores. Such limitations seem unreasonably discriminatory, and arguably another instance where franchise networks are singled out because they are readily identifiable.