Who's In, Who's Out

FDA attempts to clarify the confusion over calorie counts

Abbie Westra, Director, Editorial, CSP

A little more than a week after its deadline, the Food and Drug Administration (FDA) released its proposed regulations regarding calorie labeling on menus and menu boards in chain restaurants and retail food establishments. A second proposal was released for vending machines.

Both proposals are now open for public comment before they are finalized by the end of 2011. Comments on the menu-labeling proposal will be accepted until June 6, and comments on the vending proposal are due by July 5.

Within the 183-page proposal for restaurants and retail-food establishments are answers to some long-lingering questions, including just what is considered a retail food establishment.

While the definition isn't set in stone, the agency is homing in on specifics in the hopes of avoiding confusion over who must comply.

[image-nocss]FDA is proposing that the term "restaurant or similar retail food establishment" mean an establishment where the sale of food is the primary business activity. This would be determined by one of two things: either the establishment presents or has presented itself publicly as a restaurant (through consumer- industry- or investor-related materials such as being listed in the Yellow Pages under "restaurants") or greater than 50% of the establishment's gross floor area is used for the preparation, purchase, service, consumption or storage of food.

As an alternative to using percentage of gross floor area, FDA is also considering defining a retail food establishment as a business where more than 50% of revenue is generated by the sale of food.

FDA is seeking comment on whether floor area, revenue or some other measurement is best for determining compliance -- likewise whether 50% is the appropriate threshold for either floor area or revenue.

In general, FDA expects movie theaters, amusement parts, general-merchandise stores, hotels, trains and planes to be exempt from the law. Again generally speaking, it expects c-stores and grocers to not be exempt.

Other key provisions defined in the proposal include the following:

  • Calories for variable menu items such as combo meals must be displayed in ranges.
  • Self-service foods such as salad bars must list calorie counts either per serving or per item on a sign adjacent to the food.
  • Foods on display must have calorie counts listed per item or per serving on a sign adjacent to the display.

Fare Digest will continue to keep you informed on the proposals as they move closer to law -- which is expected by the end of 2011. Read the entire proposal here. Meanwhile, email your biggest questions and concerns about the proposal to [email protected], and we'll work to get you answers.

Abbie Westra, CSP/Winsight By Abbie Westra, Director, Editorial, CSP
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