New Caloric and Nutrition Posting Regulations Affecting Franchises

On December 1, 2014, the Health and Human Services Agency’s U.S. Food and Drug Administration (“FDA”) published final regulations implementing the nutrition labeling provisions of the Patient Protection and Affordable Care Act (“ACA”), as amended by the Federal Food, Drug, and Cosmetic Act (“FD&C Act”). Among other things, Section 4205 of the ACA set forth a requirement that restaurants and similar retail food establishments that are part of a chain of 20 or more locations doing business under the same name post the number of calories with each standard menu item, along with suggested daily caloric intake, and to make certain other nutrition information separately available in written form.

The final regulations define “covered establishment” as “a restaurant or similar retail food establishment that is a 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,” and also includes voluntary registrants.

In typical fashion, the FDA specified the new menu requirements in excruciating detail. For example:

  • The type size and color of the calories disclosure cannot be any smaller or less conspicuous than the item name or price, and must be in line with either the item name or price;
  • Calories must be listed to the nearest 5-calorie increment up to 50 calories, and the nearest 10-calorie increment above that;
  • A proper “Calories” or “Cal” must be used as a heading in type or color not smaller or less conspicuous than any other item or price on the menu;
  • Separate line items may be required for calories of toppings (e.g. for pizza and ice cream); and
  • Special rules apply for combination meals.

With an effective date of December 1, 2015, food-oriented franchises should begin thinking about revamping menus and menu boards to allow sufficient time for all franchises to be compliant. Additionally, franchisors and franchise owners may need to involve suppliers and manufacturers to obtain the information necessary to be compliant. Failure to comply with the regulations will render the food misbranded, which could, under the FD&C Act, carry criminal penalties.

The regulations and FDA response to comments on the rule may be accessed here. For questions regarding the new regulations and their impact on your franchise, you may contact Briar Siljander or Catherine Riesterer at 810-227-3103.