Nutrition Labeling of Restaurant Menu and Vending Machine Items

Summary

High rates of obesity and chronic diseases have prompted various federal, state, and local nutrition labeling initiatives. The 1990 Nutrition Labeling and Education Act (P.L. 101-535) required nutrition labeling of most foods and dietary supplements, but it did not require labeling of food sold in restaurants. However, consumption data indicate that Americans consume more than one-third of their calories outside the home, and frequent eating out is associated with increased caloric intake.

In 2010, President Obama signed the Patient Protection and Affordable Care Act (ACA, P.L. 111-148) into law, with Section 4205 mandating nutrition labeling in certain restaurants and similar retail food establishments (SRFEs). This provision also required calorie labeling of certain vending machine items. In 2011, as required by the ACA, the Food and Drug Administration (FDA) published two proposed rules establishing calorie labeling requirements for food items sold in certain restaurants and vending machines; both rules were finalized and published in the Federal Register on December 1, 2014. The labeling rules were to take effect one year later (December 1, 2015) for restaurants and two years later (December 1, 2016) for vending machines; however, in the wake of concerns expressed by industry groups, trade associations, and some Members of Congress, FDA extended the compliance date for restaurant menu labeling to December 1, 2016. The compliance date was yet again extended following language included in the FY2016 Consolidated Appropriations Act (P.L. 114-113), which prohibits the use of any funds for implementation, administration, or enforcement of the menu labeling requirements until the later of December 1, 2016, or until one year from the date that the Secretary of the Department of Health and Human Services (HHS) issues final, Level 1 guidance on compliance with specified requirements for menu labeling contained in the final menu labeling rule. FDA issued draft Level 1 guidance to help companies comply with the menu labeling final rule on September 11, 2015, but a final guidance has not been issued.

In addition to requiring calorie labeling for food sold in certain restaurants and vending machines, labeling will also be required for prepared foods sold at supermarkets, grocery and convenience stores, and entertainment venues (e.g., movie theaters and amusement parks). Calorie counts will have to be listed on menus and menu boards for all standard items, including alcoholic drinks and salad bar items.

Prior to the federal rule, state and local menu labeling regulations had resulted in a patchwork of labeling requirements, making compliance challenging for chain food establishments. Several restaurant chains (e.g., McDonald’s, Panera Bread, and Starbucks) had moved forward with nationwide nutrition labeling prior to FDA’s final rule, expressing support for a federal menu labeling standard.

Opponents of the final menu labeling regulation have questioned FDA’s interpretation of the ACA provision, arguing that the final rule is more stringent than the regulation initially proposed by FDA or intended by Congress. For example, as mentioned above, the final rule requires grocery stores and delivery establishments (e.g., pizza places) to meet the labeling requirements. Some Members of Congress have asked FDA for a one-year delay in rule implementation, as well as guidance on what types of foods will be covered and technical issues. As a result, implementation and enforcement of the menu labeling final rule has been delayed.

This report discusses the role of menu labeling in addressing obesity, provides a brief overview of the FDA’s authority to regulate nutrition labeling, and summarizes selected aspects of the final FDA regulations. Related concerns raised by industry groups, Congress, and the public are also discussed.