You may have noticed changes to menus in recent years. Depending on your state, menus may have significantly more information on them. Nutritional information, specifically those that pertain to calories or sugar, can often be seen alongside the ingredients.

This is all in an attempt to help Americans make better food choices by making more information available to them. And not just available, but right there in their faces.

It is harder to order that burger or coffee drink when you see how many calories and grams of fat are in it, right there on the menu. We (the collective we) still do it though. But at least we are well informed.

In an effort to encourage reduced consumption of added sugars, the US Food and Drug Administration (FDA) is updating its guidance on menu labeling. What all will this entail? That information is still being worked on. Many have speculated that the next logical step is to make some of the voluntary activities become mandatory. The last update on this topic occurred in May 2018.

Current Status: A Call for Public Comments

To gather information on what the public, federal agencies, and private industry have to say about the matter, the FDA held a virtual public meeting in November and are currently accepting comments for what steps the FDA can take to “make progress towards this goal” as the document is being completed.

So far there has been only one public comment.

Before we dive into the current potential changes, let’s take a look at how these recommendations and requirements have changed over time.

A History of Menu Labeling Guidelines

Menu labeling has come a long way. In the beginning, it was the Wild Wild West! No warnings or disclosures were required. Even indicating potential allergens is a fairly modern addition.

As time goes on and certain nutritional aspects become more and more important, the FDA and governmental regulations have stepped in to encourage food establishments to better inform the customer. In some cases, these new activities have become requirements. Things such as allergen notification and health risk warnings have been added over time.

These nutritional information guidelines have been in place since 2014.

2014 Update

A final rule on nutrition labeling standards for menu items in restaurants and similar food establishments was entered into the Federal Register on December 1, 2014, that set the minimum requirements for the industry. Prior to this requirement consumers were able to find nutritional information on most packaged foods, however this information was not consistently available at restaurants or other food establishments serving ready-to-eat or prepared foods.

Calorie information became a requirement during this update. Restaurants and similar retail food establishments were required to indicate the calories per serving for ready-to-eat prepared foods so that consumers can make more informed dietary choices.

2018 Update

An update guidance entitled, “Menu Labeling: Supplemental Guidance for Industry” was published to the Federal Register on May 5, 2018, that offered additional resources regarding the implementation of nutritional labeling requirements for foods sold in “covered establishments.”

A “covered establishment” was defined as a “restaurant or similar food establishment that is part of a chain with 20 or more locations doing business under the same name (regardless of the type of ownership, e.g., individual franchises) and offering for sale substantially the same menu items, as well as a restaurant or similar food establishment that voluntary registers with the FDA to be covered by the Federal menu labeling requirements.”

This categorization exempts most small businesses or what is colloquially known as “mom and pop shops.”

This update offered graphical depictions of what was expected and addressed calorie disclosure for self-service foods (including buffets, grab-and-go foods, etc.) and the criteria for considering the natural variations of food. For example, additional calories of a burger with mayo or added bacon, or additional toppings on a pizza.

Also included in this update is a “calories from fat” nutrient declaration requirement. This guidance was added because available data supports the view that the type of fat is more relevant to risk of chronic disease than overall caloric intake. “Added sugars” was also added to the menu labeling criteria.

Technology also impacted this update. “With the popularity of using third-party platforms, such as third-party online ordering websites and delivery applications to order food for pickup and delivery from chain restaurants and similar food establishments,” these same disclosures should be available there as well so that consumers can “make informed and healthful decisions when ordering their meals online.” With Door Dash, Grub Hub, Uber Eats, and so many other food ordering options, regulations had to keep up with technological trends, though at this time it was still voluntary.

2024 Update

The process for the 2024 update began in early November, where the FDA hosted a virtual public meeting to receive feedback on what changes should be added to the 2024 updated guidance. The bulk of this update is intended to update the existing guidance and address voluntary declaration of added sugars and voluntary declaration of nutrition information on third-party platforms.

The FDA is accepting feedback and questions through Mid-January and will respond by Mid-February.

At this time, there is only one published public comment on the matter. This comes from the National Federation of Independent Business (NFIB). According to the comment, NFIB is “an incorporated nonprofit association representing small and independent businesses. NFIB protect and advances the ability of Americans to own, operate and grow their businesses and ensures that governments of the United States and the fifty states hear the voice of small business as they formulate public policies.”

The organization is against promoting certain declarations that are currently voluntary status, such as those for third-party platforms such as online ordering and food delivery sites, to required status.

Making those recommendations mandatory would “impose substantial additional disclosure burdens and compliance costs on many food-selling small businesses.”

Would the Potential Mandatory Disclosures Truly Cause Significant Burden?

The question remains, would promoting the caloric disclosure from voluntary to mandatory truly impose significant burden?

The disclosure data is already readily available, as this information is required at brick and mortar or physical locations. Website updates to include this information will come at a cost, but likely not significant.

Want to Know More About Food Safety?

If you’d like to know more Food Safety, check out the Make Food Safe Blog. We regularly update trending topics, foodborne infections in the news, recalls, and more! Stay tuned for quality information to help keep your family safe, while The Lange Law Firm, PLLC strives to Make Food Safe!

By: Heather Van Tassell