Restaurants and bars serving beverage alcohol are among the various businesses regulated as part of President Obama’s healthcare reform law. The new law also includes revisions to the Federal Food, Drug and Cosmetic Act establishing requirements for nutrition labeling for standard menu items, including beverage alcohol, at chain restaurants. The new requirements will apply to restaurants or similar establishments with twenty or more locations, doing business under the same name, and offering substantially the same menu items.
The new law applies to any food, beverage, or drink—with or without alcohol—that is a standard menu item and, while not explicitly addressed in the new law, the Food and Drug Administration (FDA), unlike all of the states with similar laws, has determined that it applies to beverage alcohol. To be covered, a product or drink must be routinely included in the operation’s primary printed material from which a consumer makes a selection. The law excludes items not listed on the menu or menu board (such as condiments and other items placed on the table for general use), daily specials, temporary menu items appearing on the menu for less than sixty days per calendar year, custom orders, food that is part of a market test and pre-packaged food that already has complete nutrition information.
For the food or drink item, the restaurants that this law applies to will need to disclose the number of calories in each standard menu item, per item or per serving, and make certain other additional written nutrition information is available to consumers upon request. The restaurant will also need to provide a statement on the menu regarding the availability of the written nutrition information. It is important to note that it has not yet been determined what, for any given beverage alcohol product, is a standard serving. Further, another consideration for beverage alcohol products is determining what is “on display.” For example, subject to more specific FDA regulation, it is likely that calorie content disclosures will be required for beverage alcohol items displayed on a back bar or in a display case.
The calorie disclosure on menus or menu boards must be adjacent to the name of the menu item. Calorie disclosure will also be required adjacent to the beverage on display or self-service beverage. Restaurants and bars may base their calorie and other nutrient disclosures on reasonable sources, including nutrient databases, cookbooks and laboratory results. The new law also requires a statement on the menu that puts the calorie information in the context of a recommended total daily caloric intake. This requirement, however, will be suspended until the FDA issues regulations clarify it.
A Curve Ball for the Drinks Business
Certain types of beverage alcohol products may also present challenges for restaurateurs in making calorie content calculations. It is not clear whether it is reasonable for a bar or a restaurant to rely upon generic data within a beverage category such as vodka or gin, or whether information that is more specific will be required. Many restaurants and bars regularly feature liqueurs or cordials, specialty cocktails and drinks made to order. It is unclear upon what standards these calculations are to be based or at what point they may be custom-order items to which the law does not apply.
The FDA is also responsible for establishing standards for determining and disclosing the nutrient content for standard menu items that come in different flavors, varieties or combinations but which are listed as a single menu item. The FDA is required to complete its rulemaking by March 23, 2011 and has indicated every intention of meeting this deadline.
The FDA’s pending rules hopefully will clarify some of the general disclosure requirements of the law, particularly for beverage alcohol products, which may present unique questions not faced by other food and beverage items. For example, are table tents and wine lists considered menus to which the requirement applies? Until clarity is provided, the best approach is to treat an item, such as a wine list, as a menu item if it is the primary printing material of the restaurant or bar from which a consumer makes a wine selection. A table tent, on the other hand, may not be considered a menu to which the calorie content disclosures apply if it changes frequently and features daily, weekly, or monthly beverage specials, drinks, or other temporary menu items.
The FDA’s rulemaking should provide some answers to the myriad of outstanding questions but the exact timetable for overall compliance is still unclear. It is expected that restaurants and bars will have six months to comply with the new law after final regulations are complete. Regardless of the FDA’s guidance, however, restaurants and bars should be aware of the new law’s application to beverage alcohol and other beverages and take a careful approach in implementing procedures for menu calorie content disclosures for these types of products.