What Laws Apply to My Restaurant Menu?

fda food code menu labeling Jan 14, 2019

You may have noticed that chain restaurants now have calories listed on their menus. And you may be wondering if you are required to include calories – or other nutrition information – on your restaurant menu. The answer is, as always, it depends.

Generally, if you are opening a restaurant and sell “restaurant-type food” (including bakeries, cafeterias, coffee shops, etc.) and it is part of a chain of 20 or more locations doing business under the same name and offering substantially the same menu items, then you probably do have to comply with the federal restaurant menu labeling requirements. In short, if your new restaurant venture is a franchise, the federal menu labeling rule probably applies and should be on your radar.

Restaurants covered by the rule are required to disclose the number of calories in each standard menu item, as that item is usually prepared. For example, if your franchise serves both whole and half sandwiches, you must display the calories for both the whole and half versions. This sounds simple, but it’s really quite complex and can take a considerable time to ensure compliance, so start this process as soon as possible.

For more details, you can check out the final rule here.

The good news is that if your restaurant is covered under the rule, then you don’t have to worry about complying with any state or local nutrition labeling requirements. Those are preempted. However, if the rule is not applicable to your restaurant then you aren’t so lucky! You are required to comply with whatever state or local nutrition labeling rules that apply. For that, you will need to check with your local regulator (usually the health department).

Please note, whether you are a covered entity or not, you still are required to follow the local health-related disclosure requirements. For example, most states follow the FDA Food Code requirement that facilities serving raw or undercooked animal foods, must include a statement advising consumers of the risk of consuming those foods. The disclosure usually requires a description of the raw or undercooked food (i.e., raw oysters), an asterisk next to the applicable menu items having that food as an ingredient (i.e., oysters in the half shell), and a statement that consuming these foods may increase the risk of foodborne illness. Check your local food laws for any other mandatory advisory statements.

Finally, no matter your menu design, it must not be false or misleading in any manner. Restaurants owners sometimes find themselves in the crosshairs of consumer fraud lawsuits for making false claims (for example, false claiming that food is sourced from a particular location or type of raw material). Thus, if you want to make a statement that your food complies with a particular diet style, is sustainability sourced, is gluten free or has some other benefit, you need to take defined and recorded steps to ensure the statement is truthful.

For more information on labeling and other topics, please see our available courses here.

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