Getting on Board With Menu Labeling

LAS VEGAS — The Food and Drug Administration's (FDA) regulation on menu labeling has been an important issue for restaurants, convenience stores and other retailers for months now, but even with implementation delayed to December 2016, there's still a great deal for operators to do in order to reach full compliance in time.

To help c-store owners make sense of the rules and make sure they don't miss anything, Doug Kantor, partner at Steptoe & Johnson LLP, walked through what the FDA regulations require during the Sunday NACS Show educational session, "Menu-Labeling Mandates," moderated by NACS' John Taets, director of government relations.

"The catch to it is you don't have to own 20 or more establishments," Kantor said, noting the store name is key. Single-store owners are not exempt if they operate a franchise that is part of a larger brand of 20-plus stores selling "substantially similar" food.

The difference between restaurant-style food covered by the mandate and packaged food that does not require c-stores to post calorie counts and other nutritional information is generally clear, but Kantor offered multiple tips for determining which is which for those products that seem borderline.

"If it's got nutrition information on the packaging, generally you're OK," he said. "If people can't look at it before they buy it … it's more complicated."

Another common point of confusion is toppings vs. condiments, with condiments being exempt from the labeling regulations. Condiments are often self-serve, require no extra charge and not already featured on a menu.

When it comes to the actual labeling, menu boards are not required. For example, retailers can post signage on a soda fountain or hot food holder. But if a menu board is used, it must include calorie counts.

It's important for retailers to remember that just including nutrition information on menu boards isn't enough, Kantor warned. Regulations require such information to be no less conspicuous than menu items and price. If it is labeled in a font color that blends into the background or a font size that is much smaller than other text, it will likely count as a violation.

"I don't think it's a stretch to say the FDA is going to be a tough regulator on this," he said.

Problem areas are likely to include soda fountains due to the high volume of information, and combination meals that may involve multiple options and sizes.

Facilities within facilities, such as a Subway franchise operating inside a c-store, may also be tricky. The FDA will treat both the c-store and the foodservice franchise as unique entities, but it is critical that contracts be written to make it clear that liability and responsibility lie with whoever is operating the unit.

Retailers can determine calorie counts through a variety of methods, including a nutrient database, cookbooks, laboratory analysis and other "reasonable means." Suppliers are not legally obligated to assist with this process, but may choose to do so in order to continue a positive business relationship.

"The key is to document how you do it," Kantor said. "Be ready to show it and lay out how you figured it out."