September 2018 Issue

Examining the New Menu Labeling Law
By Jessica Levings, MS, RD
Today's Dietitian
Vol. 20, No. 9, P. 38

Greater Opportunities Abound for Dietitians

If you've eaten in a chain restaurant recently or bought ready-to-eat food at a grocery or convenience store, you've probably noticed calorie counts on menus and menu boards. Resulting from provisions in the Patient Protection and Affordable Care Act of 2010 (ACA), the FDA's menu labeling final rule came into effect on May 7, 2018, requiring calorie information be displayed in chain restaurants and similar retail food establishments with 20 or more locations nationwide, and that additional nutrition information be made available upon request.1 Establishments not covered by the law may register voluntarily with the FDA to become subject to the federal requirements.

Why Menu Labeling?
The menu labeling law was passed because more than two-thirds of adults and nearly one-third of children in the United States are overweight or obese.2 Foods prepared outside the home, such as those from restaurants and other establishments selling ready-to-eat food, have become a large source of calories for American consumers and now account for about one-third of total calorie intake.2 However, many people either don't know or underestimate the calorie and nutrient content of these foods. While consumers can refer to Nutrition Facts labels for nutrition information on most packaged foods, this information generally wasn't consistently available in restaurants and similar retail food establishments before the menu labeling requirements. The ACA menu labeling provisions aimed to help make nutrition information readily available at the point of purchase and enable consumers to make informed and healthful choices when eating away from home.

Furthermore, public health advocates have suggested that menu labeling could help prevent chronic disease. In 2008, a New York City Department of Health and Mental Hygiene modeling study estimated that menu labeling could reduce the number of obese people by 150,000 over five years and prevent more than 30,000 diabetes cases.3 Moreover, another modeling study by the University of California Berkeley Center for Weight and Health estimated that calorie labeling in California alone could reduce calorie intake by more than 9,000 kcal annually, per person, preventing nearly 3 lbs of weight gain.4 While these modeling studies suggest menu labeling may positively impact chronic disease, results of studies assessing consumer attitudes and behaviors related to menu labeling are inconclusive. Studies looking at purchase behaviors before and after menu labeling are mixed, with some reporting a positive impact and others reporting no impact.5 While the totality of limited studies based on self-reported responses don't support menu labeling as an effective way to counteract obesity and chronic disease, the information that's displayed and given upon request can help educate consumers about how many calories are actually in the meals they're ordering and enable them to make more informed choices.

What the Requirements Entail
Covered establishments must display the number of calories in standard items on menus and menu boards and provide, when requested, written nutrition information for the following: total calories, total fat, saturated fat, trans fat, cholesterol, sodium, total carbohydrate, sugars, fiber, and protein. Menus and menu boards also must display two statements on each page—one indicating that additional written nutrition information is available upon request, and the other clarifying that 2,000 kcal per day is used for general nutrition advice, but calorie needs vary.2 The requirements apply to restaurants and similar retail food establishments that are part of a chain with 20 or more locations, doing business under the same name, offering for sale essentially the same menu items, and offering for sale "restaurant-type foods." The types of establishments that are covered include quick service and sit-down chain restaurants, grocery and convenience stores serving restaurant-type food (eg, ready-to-eat subs and pizza), take-out establishments and pizza delivery chains, entertainment venues that are part of a chain (eg, movie theaters and amusement parks), cafeterias that are part of a chain, coffee shops, and bakeries.1

Calories are required to be displayed on menus and menu boards, including specialty menus (eg, drink and dessert menus), drive-thru menu boards, and electronic menus and menu boards. Online menus also are included if the consumer can make a selection and place an order. Calories for each standard menu item listed on a menu or menu board must be displayed adjacent to the name or price of the menu item in a type size at least the same as the type size of the name or price of the menu item. Calories for items with different flavors or varieties that are listed as a single item must be displayed with a slash (eg, 150/250 kcal) if there are only two options, or as a range (eg, 150–300 kcal) if there are three or more options. Certain items are excluded from the menu labeling requirements including custom orders, daily specials, temporary menu items (ie, items offered for fewer than a total of 60 calendar days per year), general-use condiments (eg, bottles of ketchup and mustard on the table), foods not on a menu/menu board and not on display or self-serve, and foods part of a customary market test (eg, foods offered for fewer than 90 consecutive days).1 Regarding enforcement, the FDA has stated that it will allow establishments a "reasonable opportunity to make corrections for minor violations" and that "any enforcement activities we pursue will be consistent with our public health priorities."

The requirements have taken some time to go into effect. On December 1, 2014, the FDA published a final rule in the Federal Register to implement the ACA's menu labeling provisions with an original compliance date of December 1, 2015. On July 10, 2015, the FDA extended the compliance date to December 1, 2016, and on December 18, 2015, the Consolidated Appropriations Act was adopted, stating, "none of the funds made available under the Consolidated Appropriations Act could be used to implement, administer, or enforce the menu labeling final rule until one year after FDA issued a final guidance document regarding the rule." This final guidance document was released May 5, 2016, and a new compliance date was set for May 5, 2017. On May 4, 2017, the FDA extended the compliance date again to May 7, 2018, in response to concerns and ongoing questions from industry stakeholders, particularly related to the pizza industry and the many ordering options that are available. Per the FDA, the many extensions were to provide "additional time to support industry innovation and to ensure consistency across establishments when delivering nutrition information to consumers."2

Even before the current requirements went into effect, many restaurants already were displaying nutrition information online, and more than 30 cities and states had passed ordinances requiring menu labeling in their jurisdictions. However, a lack of uniformity existed due to piecemeal standards in place of a national law. According to the National Restaurant Association, the menu labeling law benefits both restaurants and consumers because they standardize the more than 30 varying state and local requirements, offer legal protection for restaurants that can show a "reasonable basis" for the nutrition information they provide, and level the playing field among competitors by ensuring that all large establishments serving restaurant-type food are covered by the law's requirements.6 The law also is supported by the many chain restaurants covered by the requirements. Horace Dawson, executive vice president and general counsel for Red Lobster, says, "We are in favor of the law and worked to get it implemented. Red Lobster has always been in favor of transparency and giving our guests the ability to make healthful choices. With 704 restaurants in the US and Canada, having a uniform standard across the many locations in which we do business is very important for us."

Opportunities for Dietitians
The new menu labeling requirements expand opportunities for knowledgeable dietitians wanting to consult with the restaurant industry. Ensuring accuracy of the nutrient content being displayed is essential to these efforts being useful to consumers. In 2014, Sonja L. Connor, MS, RD, LD, then president of the Academy of Nutrition and Dietetics, said, "These initiatives are supported by legitimate research, but, to be truly effective, must include nutrition education and policy evaluation, and ensure calorie counts are accurate."7

Dietitians already have been essential in ensuring that calorie and additional nutrient information displayed is accurate and not misleading. During the implementation phase, dietitians helped restaurants conduct nutrient analyses for their meals and decide how this information should be displayed. Of the numerous restaurants I consulted with during this phase, all of them relied on dietitians to help conduct and confirm the nutrient analyses and determine how to best display the information on menus and menu boards. Now that the law has gone into effect, restaurants also will need ongoing assistance with nutrient analyses as recipes are reformulated and menus are updated accordingly.

Database recipe analysis is the most widely used method of nutrient analysis, although some meals such as those that are fried or that contain marinades also may need to be sent for lab analysis. Dietitians must be cognizant of certain considerations when analyzing restaurant meals with nutrient analysis software (eg, accounting for recipes that aren't standardized and how different cooking methods impact the nutrient content of the final product). Dietitians also must understand cooking methods that may not result in accurate nutrient analyses using a database, such as deep frying and the use of marinades or stocks. Converting between weight and volume and understanding the effects of evaporation and absorption also are necessary skills.

In addition, dietitians can play a role in recipe reformulation. When I worked with restaurants to prepare them for the menu labeling requirements, one concern that was expressed frequently was that consumers wouldn't order certain meals anymore once they realized how many calories they contained. In some cases, this enabled me to work with the restaurant to help reformulate the meal or side dish to improve the nutrient profile, as well as ensure the accuracy of any nutrient content and health claim displayed on the menu.

When reviewing a recipe, dietitians should ensure that all recipes and subrecipes include exact measurements, detailed ingredient descriptions, brand names of ingredients, corresponding nutrition information (from the supplier), and exact preparation processes (eg, fried, marinated, sautéed). Dietitians also should talk with the chef to see whether it's standard practice to add a "pinch" of salt before serving the menu item, even if the recipe doesn't call for it, as this could affect the sodium content of the recipe. Similarly, talk with the chef to ensure that all garnishes, such as pickles added to the plate just before serving, are accounted for in the recipe.

Complying with the menu labeling requirements has created the added expense of nutrient analyses for restaurateurs—not just for staff time but also for hiring outside consultants to assist with analyses and compliance. According to the FDA, the major cost considerations associated with complying with the final rule include the following: collecting and managing recipe analysis records for standard menu items, revising or replacing existing menus and menu boards (eg, marketing, design, and printing), providing full written nutrition information, training employees to understand nutrition information to ensure compliance, and legal team review.7 Dietitians must remember that a restaurant is a business with its main concern of providing what the customer wants, which, in turn, will increase their profit margin. Understanding not only how loyal customers might perceive ingredient substitutions or recipe reformulations but also the cost implications of suggested changes is essential to a beneficial working relationship with the restaurant. Dietitians helping restaurants comply with menu labeling requirements also must be knowledgeable about the specific requirements, be detail oriented regarding data reporting and record keeping, and have a breadth of knowledge about nutrient and health claim requirements. Dietitians should maintain adequate liability insurance coverage for this endeavor and make sure they sign a contract detailing the scope of work, terms, and payment before they begin working with the restaurant.

When working with the public, dietitians can help consumers visualize portion sizes since some allowable serving size descriptions aren't consistent with the tools used to scoop ingredients. For example, restaurants can display calories for 1 cup of spinach when the utensils used are tongs, and gas stations can display a 1-oz serving of frozen yogurt toppings when the tools used are also tongs, but these quantities may be hard for consumers to estimate and visualize.2

If they're useful to their original intent, the new menu labeling requirements won't only help consumers make more healthful choices when dining out, but also create a new niche for dietitians wanting to consult with the restaurant industry.

— Jessica Levings, MS, RD, realtor, is a freelance writer and food industry consultant helping consumers Home in on Health with evidence-based resources. You can read more of her articles at BalancedPantry.com and follow her on Twitter and Facebook @BalancedPantry.

References
1. Food and Drug Administration, HHS. Food labeling; nutrition labeling of standard menu items in restaurants and similar retail food establishments. Final rule. Fed Regist. 2014;79(230):71155-71259.

2. Food and Drug Administration. Menu labeling: supplemental guidance for industry. https://www.fda.gov/downloads/Food/GuidanceRegulation/GuidanceDocuments
RegulatoryInformation/UCM583492.pdf. Published May 2018.

3. New York City Department of Health and Mental Hygiene. Notice of adoption of a resolution to repeal and reenact §81.50 of the New York City health code. https://www1.nyc.gov/assets/doh/downloads/pdf/public/notice-intention-hc-art81-50-1007.pdf. Published 2008.

4. Center for Science in the Public Interest. Summary of findings: influence of nutrition information provision. https://cspinet.org/sites/default/files/attachment/lit_review-nutrition_info_studies.pdf. Updated October 2008.

5. Kiszko KM, Martinez OD, Abrams C, Elbel B. The influence of calorie labeling on food orders and consumption: a review of the literature. J Community Health. 2014;39(6):1248-1269.

6. Issues and advocacy: menu labeling. National Restaurant Association website. https://www.restaurant.org/advocacy/menu-labeling

7. Food and Drug Administration, Office of Regulations, Policy, and Social Sciences Center for Food Safety and Applied Nutrition. Food labeling: nutrition labeling of standard menu items in restaurants and similar retail food establishments. Final regulatory impact analysis FDA-2011-F-0172. https://www.fda.gov/downloads/AboutFDA/ReportsManualsForms/Reports/
EconomicAnalyses/UCM426165.pdf. Published November 2014.