May 25, 2016

Think You Know How FDA Defines A Menu? Think Again.

Seller Beware: Consumer Protection Insights for Industry

Along with spring showers, the month of May has brought with it a flurry of FDA action related to the labeling of food product. On Friday, FDA announced that it has finalized a new Nutrition Facts label. On May 10, FDA announced its intent to reevaluate its regulation of nutrient content claims (including the term "healthy"). And, on May 5, FDA provided further guidance to restaurants on how to comply with menu labeling requirements through FDA's Guidance for Industry: A Labeling Guide for Restaurants and Retail Establishments Selling Away-From-Home Foods -- Part II.

We will address FDA's reevaluation of the Nutrition Facts label and nutrient content claims in a forthcoming client advisory. In this post, we would like to discuss an important nugget embedded in FDA's recent guidance regarding the labeling of "away-from-home foods"--specifically, in the world of tweets, posts, and vines--what constitutes a menu?

As background, FDA's Labeling Guide for Away-From-Home Foods is intended to help "covered" establishments (restaurant chains with 20 or more locations that offer substantially the same menu items) understand the nutrition-related menu labeling rules that apply to "restaurants or similar retail establishments." As established by the menu labeling provision of the Affordable Care Act of 2010, a food sold in covered establishments must include calorie labeling on the menu or menu board adjacent to the name or the price of the standard menu item (or, in the case of self-service foods and foods on display that are not listed on the menu or menu board, in "a manner in close proximity and clearly associated with the standard menu item").

FDA's definition of a "restaurant or similar retail establishment" is broad; it includes bakeries, cafeterias, coffee shops, convenience stores, delicatessens, food service facilities and concession stands located within entertainment venues (such as amusement parks, bowling alleys, and movie theatres), food service vendors (such as ice cream shops and mall cookie counters), food takeout or delivery establishments (such as pizza takeout and delivery establishments), grocery stores, retail confectionary stores, superstores, quick service restaurants and table service restaurants.

Interestingly, FDA's recent guidance reminds companies that FDA's definition of a "menu" is broad too.

FDA defines a "menu and menu board" as the primary writing of the covered establishment from which a customer makes an order selection, including, but not limited to, breakfast, lunch and dinner menus; dessert menus; beverage menus, children's menus, other specialty menus (such as, catering), electronic menus, and menus on the Internet. While the definition may appear innocuous, examples included in the guide illustrates its broad implications.

Examples 5.17 and 5.18 of the guidance discuss instances where what many would consider to be marketing material (e.g., a coupon) would be considered by FDA to be a menu for purposes of FDA regulation.

In pertinent part, FDA takes the position that if a coupon stating "1 large 2 topping pizza $9.99" contains a phone number or website where the customer can place an order for the pizza, the coupon would be considered by FDA to be "a menu (and not simply a coupon)" that would be required to include a calorie declaration.

The implications of FDA's definition of a "menu" can be far-reaching for restaurants as they consider new ways to simplify the promotion (and purchase) of food products through novel technology mediums. For example, recently a leading national pizza chain issued an advertising campaign that highlighted the ability of consumers to order pizza simply by sending a pizza emoji. One can only wonder if FDA had such a strategy in mind when creating the "new" examples included in this guidance and, even more importantly, under what circumstances, promotional messages sent by the pizza chain to facilitate or encourage the order of pizza in this manner would cause the promotional content to become a "menu." As noted in FDA's, examples, inclusion of the company's website can arguably turn an offer of sale by a covered establishment to be "menu or menu board" that requires the disclosure of calorie information.

The publication of the May 5th guidance started the clock on a one-year grace period before FDA begins enforcement in this area, as mandated by the Consolidated Appropriations Act for 2016. In the interim, restaurants and similar retail establishments should be careful to ensure that all of their marketing strategies account for FDA's relatively broad definition of a "menu and menu board" prior to May 2017.

© Arnold & Porter Kaye Scholer LLP 2016 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

Subscribe Link

Email Disclaimer