Although they may not immediately connote a traditional form of advertising, food menus and labels serve as a form of advertising in the minds of many consumers and are regulated by Food & Drug Administration (“FDA”).  Read below for two important updates/reminders in the food-related space.

62909081 - calorie dessert for each piece. problem with obesity. popular dessert menu.Menu Labeling:  As a follow up on a prior blog post and as detailed in today’s Consumer Update from the FDA, the FDA is requiring this month that certain types of food establishments post calorie information on menus and menu boards and provide nutrition information upon request in order to help consumers make informed choices in ordering food items.  The FDA’s requirement applies to chain restaurants as well as eating establishments with more than 20 locations, and the FDA’s Consumer Update provides examples of the types of locations where consumers should expect to now see calorie posting, if they don’t already.

Nutrition Facts Label:  Following up on another prior blog post, the FDA recently announced that it is extending the deadline to comply with its Nutrition Facts Label rule and its Serving Size rule by 18 months.  Instead of requiring compliance by certain manufacturers this summer, the FDA will now require compliance by January 1, 2020 for larger food manufacturers and January 1, 2021 for smaller food manufacturers.  This extension is intended to provide sufficient time to ensure industry compliance.

On May 20, 2016, the Food and Drug Administration (“FDA”) announced new changes to the Nutrition Facts label required for packaged foods.  The FDA’s intent was to create a new label that would make it easier for consumer to make informed food choices and would reflect new scientific information, such as the link between a consumer’s diet and chronic diseases (e.g. obesity and heart disease).

The FDA set the original compliance deadline for the new Nutrition Facts label as July 26, 2018, with an additional year for small businesses (manufacturers with food sales of less than $10 million annually).  However, on June 13, 2017, following industry and consumer group feedback, the FDA announced that it intended to extend the original compliance deadline so that it could provide manufacturers with necessary guidance, allow manufacturers additional time to complete and print new labels for their products, and minimize the period during which consumers will see both labels in the marketplace.  The FDA has not yet indicated what the new compliance deadline will be, but industry and consumer groups will certainly be watching closely.

Detailed information regarding the new Nutrition Facts label and the FDA’s changes are available on the FDA’s website.  In addition, the FDA has developed a side-by-side comparison of the original Nutrition Facts label and the new Nutrition Facts label, making the FDA’s changes easy to spot.  For example, certain items of information–“servings per container,” “serving size,” and “calories”–will now appear in bigger and/or bolder font.  In addition, the FDA is requiring that “serving size” be updated to more realistically reflect the amount of food customarily eaten at one time, that certain changes be made for certain size packages, and that “daily values” be updated to reflect new scientific evidence.  The FDA is also requiring the addition or removal of certain items of information.  For example, in light of scientific research indicating that the type of fat is more important than the amount, the FDA has removed “calories from fat” from the label entirely.  The FDA has also removed “vitamin A” and “vitamin C” but has added “vitamin D” and “potassium” in recognition of research indicating that the lack of such nutrients is associated with increased risk of chronic disease and is requiring that manufacturers now declare the actual amount of the four required vitamins/minerals in addition to their “daily value.”  As another addition, the FDA is now requiring “added sugars” be declared directly beneath the “total sugars” listing.  The FDA has also modified the list of required nutrients that must be declared at the bottom of the Nutrition Facts label and has updated the footnote to better explain the meaning of “daily value.”

After 20 years with the current Nutrition Facts label, the FDA has determined that change is in order.  How soon that change will ultimately take effect is yet to be determined.