In the near future, chain restaurants and “similar retail food establishments,” including many restaurants and convenience stores operated by truckstop operators, will be required to post calories for prepared food items that are sold in the establishment. Entities covered by the rule must post calories either on menus or menu boards or, for self-service items and foods on display, on signs that are near the items. These establishments also will be required to provide additional written nutrition information to consumers upon request.
With the menu labeling rule's enforcment day less than one year away, truckstop and travel plaza owners and operators should begin planning for the rule as soon as possible. This summary and compliance guide is intended to provide truckstop and travel plaza owners and operators with a general understanding of their obligations under the final rule.
Additional inquiries can be directed to NATSO’s Legislative and Regulatory Counsel, David Fialkov by email at email@example.com or phone at (703) 739-8501.
I. What Types Of Establishments Are Subject To The Menu Labeling Rule?
What Establishments are Covered by the Menu Labeling Rule?
The menu labeling rule applies to any retail establishment with 20 or more locations operating under the same name, offering for sale substantially the same menu items, that sells food that is intended for consumption soon after being purchased. This includes food sold at a restaurant, as well as hot and prepared food sold at convenience stores.
Note that the key question as to whether an entity is covered is whether there are 20 or more locations doing business under the same name. The number of establishments owned and operated by a particular company or individual is not relevant.
For establishments that either do not have a name presented to the public, or have a generic name (e.g., “convenience store,” or “cafeteria”), then the name of the parent (corporate) entity of the establishment would be considered the “name” under which the establishment is doing business. Similar names with minor variations based on things such as location or size (such as “Travel Center Snacks” vs. “Travel Center Snacks Express”) are considered the “same” name for purposes of the menu labeling rule.
Note that the different locations must offer for sale substantially the same menu items. By this, FDA means that a “significant proportion” of the items are prepared in “substantially the same way” with “substantially the same food components” as items offered at 19 or more other locations within the chain. Thus, even if there are 20 establishments operating under the same name, those establishments are only covered by the menu labeling rule if they offer substantially the same menu items as 20 other such establishments.
Whether or not two different establishments are offering the “same” menu items is a fact-specific determination. FDA has stated that “depending on the extent to which the menu items vary, [an establishment] may or may not meet the criterion of offering for sale substantially the same menu items as defined in the rule.”
Importantly, once an establishment is covered by the menu labeling rule, it must declare nutrition information for all hot and prepared food that it sells, even if such food is sold at less than 20 locations within the chain.
To summarize, an entity is subject to the menu labeling rule if it:
- Sells any amount of hot or prepared food for immediate consumption;
- Is part of a chain with 20 or more locations doing business under the same name (including franchises); and
- Offers for sale “substantially the same menu items” as 19 or more other locations doing business under the same name.
How does the menu labeling rule apply to franchises?
The menu labeling rule applies to businesses that are part of a chain of 20 or more locations, regardless of who owns the locations. For example, the owner of a single franchise business (such as a Subway) is subject to the rule if that franchise has 20 or more locations that are “doing business” under the same franchise name.
How does the menu labeling rule apply to travel plazas with multiple restaurants?
Often times, travel plazas and truckstops have multiple businesses located within a single facility (such as a food court with multiple fast food restaurants, a separate sit-down restaurant, and a convenience store). In these instances, each separate establishment will be evaluated separately for purposes of determining whether it is covered by the menu labeling rule.
For example, if a travel plaza has a Subway, a McDonald’s, a convenience store, and a sit-down restaurant, the Subway and the McDonalds will clearly be covered by the rule (since there are more than 20 different Subways and McDonald’s locations). Whether the sit-down restaurant and the convenience store are covered by the rule will depend upon whether there are 19 or more other locations operating under the same name.
So if the convenience store is one of dozens of convenience stores operating under the same trade name, the convenience store will be subject to the menu labeling rule. If the sit-down restaurant has a name that is not shared with 19 or more other restaurant locations, the sit-down restaurant will not be subject to the menu labeling rule, etc.
Which individual ultimately is responsible for complying with the menu labeling rule?
The FDA has stated – ambiguously – that the person with “authority and supervisory responsibility” over an establishment is responsible for complying with the rule. This, however, leaves several questions unanswered regarding travel plazas’ varied business models. For example, some travel plazas may operate fast-food restaurants as franchisees; others may simply lease out space in their facility to fast-food restaurants that are operated by separate companies. The rule is not specific as to how liability will be allocated in these various, nuanced scenarios. (As a practical matter, chain restaurant franchisors should be able to provide the requisite information and compliance materials to enable franchisees to easily comply with the menu labeling rule.)
NATSO believes that truckstop owners should only be held accountable for the compliance obligations of a chain restaurant or store if the owner has authority or supervisory responsibility over the operations of the restaurant or store. These issues generally can be negotiated contractually. It is advisable to specify in franchise and/or supply contracts which entity will be responsible for menu labeling compliance.
As noted above, FDA has not established a clear “chain of liability” for purposes of enforcing the menu labeling rule.
II. What Types Of Food Are Subject To The Menu Labeling Rule?
What types of food are subject to the menu labeling rule?
Only food items that are intended for immediate consumption are subject to the menu labeling rule. By this, FDA means that the food is usually eaten on the premises, while walking (or driving) away, or soon after arriving at another location.
By way of example, FDA has stated that it considers the following types of food to be covered by the menu labeling rule:
- Food purchased at a drive-thru;
- Take-out and delivery food;
- Hot pizza that is ready to eat;
- Self-serve / buffet food and food from a salad bar;
- Foods ordered from a menu or menu board at a convenience store that is intended for individual consumption (such as sandwiches).
Conversely, FDA has stated that the following foods are not covered by the menu labeling rule:
- Foods that are usually further prepared before being consumed (such as deli meats and cheeses); and
- Foods to be eaten over several eating occasions or stored for later use (such as loaves of bread).
Does the rule contain any exemptions for certain types of food?
Yes. The menu labeling rule specifies that certain types of food are not subject to the menu labeling rules. These include:
- Condiments – Items such as condiments for general use that are available without additional payment for consumers to put on food products that they purchase are exempt from the menu labeling requirements. Thus, if an establishment sells hot dogs, the calorie count for hot dogs only needs to include the hot dog and the bun, not any additional calories from condiments that are added later. (The same applies for drinks, such as coffee, where customers may add “condiments” such as cream and sugar.)
- Note that this exemption does not apply to condiments that are part of a menu item as it is usually prepared. For example, if a cheeseburger is generally prepared with ketchup and mayonnaise, such condiments must be incorporated into the burger’s calorie count.
- Temporary Menu Items – Menu items that are offered for fewer than 60 total days per year are not subject to the menu labeling rule.
- Market Tests – Food that is part of a customary market test is not subject to the menu labeling rule. FDA has specified that this refers to food that is offered for less than 90 consecutive days in order to test consumer acceptance of the product.
- Note that the 90-day threshold applies to each establishment within a chain, so if two different establishments in the same chain each test a product for 70 days, the product would still fall within the customary market test exception. The key component is that the food must be offered as a means of testing consumer acceptance.
- Daily Specials – Daily specials, defined as a menu items that is prepared and offered for sale on a particular day, and is promoted as a special menu item for that particular day, is not subject to the menu labeling rule.
- Based on the definition of “temporary menu item” above, it would be advisable to treat any special that is offered 60 or more times per year as being subject to the menu labeling rule. Any special offered 59 times or less per year is exempt from the rule.
What if a customer makes a specific order tailored to his own liking that does not appear on the menu?
This is referred to as a “custom order.” Establishments do not need to provide calorie information for “custom orders.” Custom orders are food orders that are prepared in a specific manner based on an individual customer’s request, which requires the covered establishment to deviate from its usual preparation of the standard menu item. Examples of custom orders are (i) a club sandwich prepared with no bacon, or (ii) a cheeseburger without the bun.
III. How Does Calorie Information Need To Be Presented?
For food that is listed on a menu or menu board, how must calorie information be presented?Covered establishments must declare the number of calories for each menu item that is subject to the rule. The calorie count listed should be the number of calories that the item has when it is prepared in the “usual manner” by the establishment. For example, if an establishment only sells 6-inch hoagies, the calorie declaration for such hoagies should be for a 6-inch sandwich. (Because many establishments do not have a precise formula for preparing food products – e.g., requiring X amount of cheese on a meatball hoagie – this standard creates some unanswered questions. NATSO is requesting further guidance on this topic.)
The number of calories must be listed adjacent to the name or price of the associated menu item, in a type size no smaller than the type size of the name or price of the item (whichever is smaller). The term “Calories” or “Cal” must appear either as a heading above the column listing the number of calories, or adjacent to the calorie listing for each item. The rules also have color requirements designed to require the calorie declaration to be as conspicuous as the name and price of the item.
Calories must be declared to the nearest 5-calorie increment up to and including 50 calories, and to the nearest 10-calorie increment above 50 calories. Food items with fewer than 5 calories may be expressed as zero.
How do I know if something qualifies as a “menu or menu board” (as opposed to an advertisement or poster)?
A “menu or menu board” means the primary writing of the covered establishment from which a customer makes an order selection. Determining whether a writing is the primary writing from which a customers makes a selection depends upon whether the writing:
- Lists the name or includes an image of a standard menu item and the price of the standard menu item; and
- Can be used by a customer to make an order selection at the time the customer is viewing the writing. Thus, an establishment’s advertisements, such as a poster on the store window or other promotional material, is unlikely to be considered a “primary writing” because customers are unlikely to view those materials at the same time they are making order selections.
It is important to note that a single establishment may have multiple “primary” menus or menu boards on which calorie information must be displayed. The critical factor is whether a particular piece of written material is likely to be used by a customer when making an order.
Are kiosks that customers can use to order made-to-order food considered “menus”?
Yes. If there is no basic preparation of the menu item that the customer starts with (e.g., turkey, Swiss cheese, mustard, rye bread) , and the customer instead selects each item that would make up the made-to-order item (bread, meat, cheese, topping, etc.), then the calorie information should be provided for each item that makes up the larger dish as that item is displayed for selection on the kiosk.
What if I don’t have any menus in my convenience store? Do I need to create a menu?
No. Establishments must post the calories for covered food items that either (a) appear on menus or menu boards or (b) are self-service food or food on display, in which case the establishment must post the calorie counts on signs next to such foods. Thus, establishments that do not have menus do not need to create a menu, but they will still have obligations under the rule if they have self-service food or food on display.
What is “self-service food” and “food on display”?
Self-service food means food that is served by the customers themselves. It also refers to self-service beverages, such as drinks dispensed from a soda fountain.
Food on display refers to food that is visible to the customer before making a selection, so long as there is not an expectation of further preparation by the consumer before consumption. For example, deli meats and cheese generally involve further preparation (i.e., combining with bread to make a sandwich), and thus would not be subject to the menu labeling rule. Other foods, such as prepared sandwiches or hot dogs do not have an ordinary expectation of further preparation before consumption and thus would be subject to the menu labeling rule.
How do I display calorie information for self-serve food items and food on display?
Covered establishments must declare calories for food items that are self-serve or on display. The calorie information also must state the serving or discrete unit to which the calorie content applies (e.g., “per slice,” “per spoonful,” “per doughnut,” etc.)
Calories can be declared on:
- A sign adjacent to and clearly associated with the corresponding food;
- A sign attached to a “sneeze guard” with the calorie declaration and the serving or unit used to determine the calorie content above each specific food (enabling the consumer to clearly associate the calorie declaration with the food). If it is not clear to which food the calore declaration refers, the sign must include the name of the food. (E.g., “cole slaw—100 calories per scoop”); or
- A single sign or placard listing the calorie declaration for several food items along with the names of the items, so long as the sign or placard is located where a consumer can view it while selecting the item.
Note that if a self-serve food item already contains a “nutrition facts” panel that includes caloric information, this will satisfy the menu labeling requirements provided that consumers can inspect the information before making an order selection (such panels constitute “signs adjacent to and clearly associated with the corresponding food”).
Do I need to list calories for each of the items on a menu or menu board, or can I consolidate calorie declarations for multiple menu items if they have a similar amount of calories?
The menu labeling rule permits establishments to consolidate calorie declarations for menu items that have the same number of calories, after rounding (to the nearest 5-calorie increment up to and including 50 calories, and to the nearest 10-calorie increment above 50 calories).
This allowance will be particularly helpful for soda fountains, where various different beverage options are likely to have similar amounts of calories.
If food items can come in multiple servings, how should establishments list the calories?
In the case of multiple-serving items that are usually offered for sale divided into discrete serving units (such as pizza slices), establishments can either declare the number of calories for the entire item (e.g., the whole pizza pie), or on a per-unit basis and total number of units contained in the entire item (e.g., X calories/slice of pizza, Y slices of pizza per pizza pie).
How should we deal with menu items that come in a number of different varieties depending upon customer preferences?
A menu item that comes in different flavors, varieties, or combinations, and is listed as a single menu item, is called a “variable menu item.” The menu labeling rule contains detailed rules for variable menu items.
When the menu lists flavors or varieties of an entire individual variable menu item (such as different ice cream flavors; chicken that can be grilled or fried; or listing all available soft drinks), the calories must be declared separately for each listed flavor or variety (unless different varieties have the same amount of calories).
When the menu does not list flavors or varieties for an entire variable menu item, and only includes a general description (e.g., simply listing “chicken” or “soda” without specifying cooking method or flavors), the calories must be declared either:
(a) where only two different options are available, with a slash between the two calorie declarations; or
(b) where more than two options are available, as a range.
- Calories declared as a range must be in the format “xx-yy,” where xx is the calorie content of the lowest calorie variety, and “yy” is the calorie content of the highest calorie variety.
Note that self-serve foods and food on display may qualify as “variable menu items” if they are offered for sale in different flavors, varieties, or combinations and listed as a single item. When this is the case, the requirements for variable menu items would apply to calories declared for the food on display or self-serve food. If the items are also listed on a menu, then those foods would need the relevant information on both the menu and where the food is displayed.
How do you declare calorie information for toppings?
The menu labeling rules contain detailed requirements for declaring calorie information for toppings. Generally speaking, calories must be declared for the basic preparation of the menu item as listed, and calories must also be declared for toppings that appear on the menu, specifying that the calories are added to the calories contained in the basic preparation of the item.
If only the general term “toppings” is used on the menu, but the individual toppings are not listed on the menu, standard format requirements for variable menu items apply, i.e., where only two options are available (toppings vs. no toppings), calories must be declared for each option with a slash between the two calorie declarations, and if more than two options are available, calories must be declared as a range.
If the toppings are visible to the consumer, the establishment will have to declare the calories for each topping on a sign or signs near the topping items (even if the calorie counts are already listed on the menu). If toppings have the same calorie amounts after rounding (to the nearest 5-calorie increment up to and including 50 calories, and to the nearest 10-calorie increment above 50 calories), the calorie declarations for such toppings can be listed as a single calorie declaration adjacent to the toppings.
How do I declare calorie information for “combination meals”?
A combination meal is a menu item that consists of more than one food item (e.g., a meal that includes a sandwich, a side dish, and a beverage). Combination meals present complexities because there likely will be several options within a single meal (e.g.,, the side dish could be carrots or potato chips; the beverage could be diet or regular soda, etc.). Additionally, the meal may include a “variable menu item” (such as a sandwich with different meat and topping options).
The rule contains detailed requirements for combination meals. As a general matter:
- When the menu lists two options for combination meals, the calories must be declared with a slash between the two calorie declarations for each option;
- When the menu includes a choice of more than two options, the calories must be declared as a range;
- When the menu allows customers to choose between different sizes of combination meals, the calorie count must be declared for each size with a slash between the two calorie declarations or, where more than two sizes are available, as a range.
What if a menu does not include “combination meals” per se, but offers combinations of standard menu items, such as a soup and a sandwich, for a special price where both items are also offered separately?
Where the menu or menu board simply describes an opportunity for a consumer to combine standard menu items for a special price (e.g., “Combine any salad with an entrée for $10.99”), and the calories for each standard menu item, including calories for each size option that may be combined are declared elsewhere on the menu or menu board, the establishment does not need to also declare calories for the combinations in a range.
What are the rules for providing calorie information for beverages?
That will depend upon whether the beverages are self-serve.
For beverages that are not self-serve, it presents some complexities because the amount of ice used in a cup can alter the calorie count of a particular beverage product. The menu labeling rule requires that calories must be declared for such beverages based on the full volume of the cup served without ice, unless the establishment ordinarily dispenses and offers for sale a fixed amount that is less than the full volume of the cup per cup size (in which case the calories must be declared based on that standard).
For beverages that are self-serve, the calorie declarations must be accompanied by the term “fluid ounces” and, if applicable, the description of the cup size. (E.g., 200 calories per 18 fluid ounces (large)”).
If beverages are served from a cooler or a display case, they will likely contain a Nutrition Facts panel on the package. If the consumer can examine the package, including its label, before purchasing the product, additional calorie information would not need to be displayed.
If beverages are dispensed from a soda fountain, calories must be declared for each specific flavor or type of beverage available at the machine (rather than as a range) in accordance with the rules applicable to self-serve foods. If the self-service beverages are also listed on a menu or menu board, then the requirements for those menus (and boards) must also be met.
Note that the rules permit consolidating calorie counts for items that have the same calorie counts (after rounding). Thus, assuming most beverages have similar calorie counts, an establishment could avoid having to list the calorie content for all beverages and consolidate the calorie declarations for similar beverages. For example, “Coca Cola, Dr. Pepper, Sprite – 150 calories/12 fluid ounces (small)”.
NATSO expects beverage companies to develop materials that will enable restaurants and food retailers to comply with the menu labeling requirements with minimal burdens. You should contact your vendor however to get a better sense of the vendor plans to help you comply.
IV. What Additional Requirements Are There Beyond Posting Calorie Information?
Does the menu labeling rule contain requirements beyond posting calorie information?
Yes. Establishments also are required to make more comprehensive nutrition information for covered food items available to customers upon request. Additionally, establishments must inform customers that such information is available. Finally, establishments must provide customers information regarding daily recommended caloric intake.
What additional information must appear on menus or menu boards?
The rule requires the following statement to be posted on all menus in a specified clear and conspicuous manner:
“2,000 calories a day is used for general nutrition advice, but calorie needs may vary.” This statement must appear at the bottom of every page of a multi-page menu (including every page of a kiosk that functions as a menu), but only once at the bottom of menu boards.
The menu labeling rule also requires the following statement to appear in a clear and conspicuous manner on all menus or menu boards: “Additional nutrition information available upon request.” The statement must be above, below, or beside the statement regarding recommended daily caloric intake. This statement is only required to appear at the bottom of the first page of a multi-page menu, and is similarly required to appear on the bottom of menu boards.
What other information do we have to provide for self-service foods and foods on display?
The menu labeling rule provides establishments flexibility regarding the “additional statements” pertaining to suggested daily caloric intake and the availability of additional nutrition information as these requirements apply to self-serve foods and foods on display.
Generally speaking, if an establishment identifies self-serve food or food on display via a sign next to the food itself, that sign could meet the definition of a “menu board” and thus would have to contain the same statements as menus (see above). The rule, however, permits establishments to post these statements either on the sign itself, or on a separate, larger sign in close proximity to the food that can easily be read while the consumer is making an order selection, or on a large menu board that can be easily read as the consumer is viewing the food.
Although the rule is not clear on this point, it appears to require establishments that do not have menus or menu boards to create an additional sign on which these “additional statements” would appear.
What additional nutrition information do covered establishments need to make available upon request?
The menu labeling rule requires additional nutrition information for covered menu items to be available in written form on the premises of a covered establishment and provided to consumers upon request. Such information must include:
- Total calories
- Calories from fat
- Saturated fat
- Trans fat
- Total carbohydrate
- Dietary fiber
- Sugars and
The rule contains exceptions for items that contain insignificant amounts of all of the above nutrients, as well as detailed requirements for how this information must be presented for variable menu items and items with toppings.
Additionally, for food items that already have a Nutrition Facts Panel on their packaging (e.g., grab-and-go sandwiches), that Panel would meet the requirements both for calorie declarations and additional nutrition information.
NATSO expects that food suppliers will have this information readily available and should be able to help restaurants and food retailers acquire and present this information to consumers.
How do I determine what the calorie / nutrition information is for food that I sell?
As a preliminary matter, NATSO urges its members to contact their food supplier(s) for assistance in acquiring and presenting this information.
Under the rule, a covered establishment must have a “reasonable basis” for its nutrient declarations, both for the calorie declarations that appear on menus, as well as for the supplemental information that must be made available upon request. This includes:
- Use of nutrient databases (including computer software programs);
- Laboratory analyses;
- Nutrition Facts on labels on packaged foods; or
- Other reasonable means.
The final rule contains a number of requirements that are applicable to these different methods of acquiring nutrition information.
How closely must individual portions of menu items match the nutrient values that I have determined for them?
The calorie and nutrition declarations for standard menu items must be accurate and consistent with the nutrient values you determined using a “reasonable basis” (see above). You must take reasonable steps to ensure that how you prepare your product (that is, the types and amounts of ingredients you use, the cooking process, temperatures, etc.) and how you serve your product (that is, the amounts of that item that are offered for sale in a typical serving) are the same as those used to determine the calorie and nutrient declarations.
How do I determine the calories for meats whose portion sizes may vary (such as pieces of fish or slices of beef)?
The rule requires that you have a reasonable basis for your calorie and other nutrient content declarations. Where variations in portion size may occur, such variations can be taken into consideration when determining the calorie content for the menu item, for example, by basing the nutrient declarations on the average size of a piece of fish or beef.
How will the FDA enforce the menu labeling rule?
In a variety of ways. For example, a state or local government is permitted to establish menu labeling requirements that are identical to the federal menu labeling rule. If this occurs, the state or local government could enforce “its own” requirements (even though these requirements are identical to the federal requirements).
Additionally, the FDA could contract with state or local enforcement officials to conduct menu labeling inspections. States are also permitted in certain circumstances to enforce the requirements without adopting their own menu labeling requirements.
FDA has partnered with states to conduct examinations and inspections in other contexts, and expects to continue doing so as part of its menu labeling enforcement regime.
FDA has not explicitly stated how it plans to enforce the menu labeling rule.
When must covered establishments be in compliance?
In May 2018, chain restaurants and “similar retail food establishments,” including many convenience stores operated by truckstop owners and operators, will be required to post calories for prepared food items that are sold in the establishment. Entities covered by the rule must post calories either on menus or menu boards or, for self-service items and foods on display, on signs that are next to the items. These establishments also will be required to provide additional written nutrition information to consumers upon request.
This seems like it could be a major expense / burden for my operation. Is NATSO working with federal officials to minimize this burden?
Yes. NATSO is working with other retail and restaurant interest groups to advocate legislation that would make compliance easier for truckstop operators, without sacrificing the FDA’s objective of providing nutrition information to consumers. At the same time, NATSO is in frequent communication with FDA officials to obtain guidance and clarification regarding various provisions in the final rule that are unclear.
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