by Marion Nestle
Aug 27 2010

FDA proposes rules for menu labeling

When President Obama signed the health reform bill last February, he also signed national menu labeling into law.  The FDA is now proposing rules for how calorie labeling will work in practice.  The proposed rules are posted on the FDA website and in the Federal Register.  The FDA is seeking public comment on its Draft guidance for industry.

The law says that restaurant chains with more than 20 units nationally must post by March 23, 2011:

  • The number of calories in each standard menu item “as usually prepared and offered for sale” (the calorie disclosure must be “clear and conspicuous” and “adjacent to” the name of the standard menu item)
  • A statement that puts the calorie information in the context of a total daily caloric intake, and
  • A statement regarding the availability of the written nutrition information.

In my previous posts and writings about calorie labeling, I’ve been concerned about several problems I’ve observed in the implementation of New York City’s calorie labeling program.  Here’s how the FDA proposes to address them.  FDA’s rules are in black italics.  Mine are in red:

Not displaying calories at all: a “menu” or “menu board” is “the primary writing of the restaurant or other similar retail food establishment from which a consumer makes an order selection. FDA considers primary writing to include all forms of primary writing, such as dessert menus, beverage menus, or other specialty type menus. I think this means that if a restaurant has a menu board, it has to post calories on the board.  If it only has menus, the calories have to be on the menus.

Displaying calories in absurdly precise numbers: calorie disclosure should be expressed in the nearest 5-calorie increments for menu items containing up to and including 50 calories, and in 10-calorie increments above 50 calories, except that amounts less than 5 calories may be expressed as zero. This is fine.  Measuring calories isn’t all that precise anyway.

Displaying absurdly large ranges of calories: FDA will not require posting calories of variable menu items and combination meals until FDA issues a final rule. FDA will provide recommended language in the proposed rule. Uh oh. The FDA must be having a hard time figuring out what to do about this one.

Displaying incorrect values for calories: a restaurant shall have a reasonable basis for its nutrient content disclosures, including nutrient databases, cookbooks, laboratory analyses, and other reasonable meansWhat “reasonable” means is debatable but this ought to work within a an error of 10% or so.  We will have to see how this one plays out.

If you want to weight in on these proposed rules, now is the time to comment. You can do this easily at Docket FDA-2010-N-0298.

  • Erin B

    Dr Nestle,

    Do you know if there has been any discussion in the FDA about standard for “serving size” labels on menu items? What I mean by that is – are restaurants required to label what they serve (e.g. bowl of pasta) as 1 serving or can they all of the sudden say they are serving 3 servings in that one dish (or bowl)?

    The reason I ask is because you mentioned in a previous article that consumers should not need a calculator for their meals, but a few months ago, I found that was not the case. My office went out for a celebratory lunch at PF Changs. I was immediately drawn to the calorie menu, as I knew it would be easy at such a place to blow all my calories for the day on some small lunch items. Upon opening the calorie menu I was pleased with the calorie and sodium counts; they were not low, but also not off the charts like I had expected. It only dawned on me later when I examined the menu a little harder that EVERY item on the menu was labeled as 2 or 3 servings! What looked to be a 500 calorie meal was actually 1000! To make matters worse, when my coworker’s meals came, the portions were actually fairly small, so many people thought that with that little food, they really were only eating 500 calories when in fact they had just eaten double!

    I found this practice to be misleading, at best, but in a lot of senses it is downright deceptive and does more harm than help to the consumer. I am concerned that without some standard we will be allowing restaurants to continue to serve us unhealthy options under the guise that it really isn’t all that bad. Anything can be healthy if you manipulate the serving size!

  • Anthro

    I, too, am concerned about the “portion problem” which results in easy misrepresentation of calories on current food package labels.

    Portion sizes need to correspond clearly to stated calories, not be a third of what will be placed in front of the consumer.

    On another note, I had heard about this provision in the legislation, (maybe here!), and am wondering if it isn’t this sort of thing that is really the cause of anger from opponents, rather than just the usual “big government takeover” bleating. Lobbyists and the Ag business can’t be happy about such measures. You know, an informed citizenry and all that.

  • Marion

    @Erin B: I think the FDA would be interested to hear about this problem. Do send to Docket. It’s really easy to do.

  • I am particularly concerned with the comment re:portions at P F Chang’s–thanks for the head’s up.This is something to pay attention to.

    I find calories on the menu, and especially menu board disturbing. It is as if the health industry is saying calories trump all else. What a distorted message. I’d rather have them available in a supplemental format.

    What do you think about the FDA allowing a 20% margin of error re:calories in packaged and nutrition labeled foods? I notice you recommended a 10% margin of error for calories posted for foods in restaurants. I would think that standardizing portions in a typical restaurant setting would be much more difficult to execute.

  • Erin B

    Dr. Nestle – thank you for the suggestion. I immediately went to the site to voice my opinion. I hope others will join me. Strength in numbers, right?

  • Eric E

    I can understand the difficulty with “large ranges of calories.” For example, when you get a fast food restaurant salad that comes with a package of optional nuts, croutons, and salad dressing. Should the board state merely the sum of all the items? In which case some consumers might choose the seemingly lower calorie hamburger even though they might not opt-in to the extras. Should they list the items separately? Back to confusing menu boards that become too hard to interpret and get ignored. Just list the main item and include on the inside packages the calorie count?

    I’ve given this a lot of thought; no solution is great. My only conclusion is that I’m glad it is not my responsibility to come up with the final answer.

  • Megan Murphy, MS, RD

    I would rather have calories and nutritional information in a supplemental format as well. Like a separate handout that is on the table, like a wine list. I think we are so anal about this now. Yes, we have a problem with obesity. Who doesn’t agree with that!? But calories posted on bags of chips and containers of ice cream haven’t seemed to make any difference, why does the government think they will make a difference plastered on the menu? Since I think part of the problem is that we rush through eating and don’t take time to really taste and appreciate our food, maybe we need to make a mandate that food cannot be delivered faster than 10 minutes after you order it, and that you have to sit at the table for at least 20 minutes to have a chance to slow down and appreciate food. Oh, and certainly no driving while eating. Sigh.

  • AJ Huff

    I’m a calorie counter so I think calories posted next to the menu price is a GREAT idea. I love it. I also think the calories listed should be the maximum for the portion served. If you pick the ham out, bonus to you. I am also a culinary student and know that all of these menu items are standardized, even the salads, so it is not that much effort for the restaurants to do. I had to do these same calculations in my Nutrition class.

    I want to see the calorie information WHEN I order my food, not have to go find it on another board on the wall (McDonalds), or have to go on line (Zaxbys) or ask for a separate pamphlet.

    Thanks for the great work Dr. Nestle!

  • I have to admit, the zero-calorie rule concerns me. I could easily see someone mindlessly racking up 100 calories, 5 at a time. Saying that an item contains <5, or 5 calories or less, would be a better descriptioin. Accuracy in science is important but not always possible – accuracy in language, however, is one of the biggest issues in this fight.

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  • Pete

    The problem with calories on the menu is this:

    When you go to Yankee stadium and visit the concessions the highest calorie count on the menu board is 1350 calories. That’s for the bag of peanuts, arguably the healthiest item on the menu. But juxtaposing 1350 calories with the 400 calorie processed tube-shaped meat-like substance on a puffy bed of refined sugar – which one looks better to the layperson?

    There is great danger in putting so much emphasis on calories.

  • Dorothy Gale

    Ultimately, weight loss is all about calories in vs. calories out. Hopefully, shocking calorie counts will get people thinking about learning more about nutrition; and learn that not all calories are created equal. Sometimes the healthier choice is a higher calorie option. Sometimes it isn’t. But requiring calorie counts is a good start.

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