FDA Offers Additional Guidance on Menu Labeling

The U.S. Food & Drug Administration (FDA) released its latest draft guidance for calorie-posting requirements on Tuesday, offering additional clarification for establishments in which alcoholic beverages are a regular part of menus.

After years of delays, the new rules — which will require restaurants, grocery outlets, and convenience stores with more than 20 locations to disclose the caloric value and supplementary health criteria of beer as well as other food and drinks sold on-premise — are slated to go into effect on May 7, 2018.

In a statement, FDA commissioner Scott Gottlieb said that the agency is “fully committed to implementing these provisions” next year, but will implement the changes “in a way that is practical, efficient and sustainable.”

“By being thoughtful and getting it right now we have before us an opportunity to implement these provisions across the diverse retail food landscape to reach our important underlying goal sooner,” he said.

In the most recent guidance, the FDA reaffirmed that caloric and other nutritional information must be included for all beers, including draft products, that are considered “standard menu items.” In the FDA’s eyes, a standard menu item is one that is routinely included on menus and menu boards.

However, the FDA also said that draft beer products not listed on a menu or menu board (and not offered in self-service areas) are exempt from the menu-labeling requirements.

Here’s the FDA’s full explanation:

“For beers that are listed on your menu or menu board and meet the definition of a standard menu item, you must declare the calories and other nutrition information for these standard menu items. This requirement also applies to beers that are on tap if they are also listed on your menu or menu board. Depending on how these beer selections are listed on your menu or menu board, declaring the calories in a range may be appropriate.

However, for beer that is served on tap and is not listed on your menu or menu board, these beers are considered foods on display. Alcoholic beverages that are foods on display and are not self serve are exempt from the menu labeling requirements. For example, beers that are served on tap, including local craft brews and regular offerings that are served by a bartender, would not require calorie and other nutrition labeling. In addition, beers that are listed on your menu or menu board for less than a total of 60 days per calendar year (e.g., pumpkin beer offered in the fall) meet the definition of a temporary menu item and therefore, are exempt from menu labeling requirements.”

In other words, chain retailers could theoretically remove alcoholic beverages from their menus and menu boards altogether and be exempt from providing nutritional information. They could also shift their buying strategies to focus on serving “temporary menu items.”

In a conversation with Brewbound, BA director Paul Gatza expressed concerns about the 60-day exemption.

“Theoretically, it could add to the idea of ‘Rotation Nation,’” he said, “If a chain restaurant decided to rotate every product out before 60 days, then they don’t have to put anything on their menus.”

But if retailers decide to maintain their menus and their current beverage buying habits, manufacturers will likely be the ones responsible for supplying nutritional information.

In Tuesday’s guidance, the FDA laid out several ways in which food-service establishments can maintain a “reasonable basis” for their nutrient content disclosures for alcoholic beverages from small breweries, wineries and distilleries.

One way to do so is to conduct lab analysis of the products. Establishments may also calculate the caloric counts via nutritional databases or by the product’s ingredients and processing or by using the Alcohol Tax and Trade Bureau’s methods for determining nutritional values.

Over the years, smaller brewers have voiced concerns about having to conduct costly nutritional analyses in order to stay on tap at popular chains like Yard House and Buffalo Wild Wings. For those companies, the BA has developed a beer nutrient database that reflects the average nutritional value of more than 40 popular craft styles.

Finally, in Tuesday’s guidance, the FDA declared that marketing materials such as posters, billboards and coupons are exempt from the requirements.

Enforcement of the new menu-labeling rules has been delayed multiple times since late 2014, when the FDA first said it would require chain establishments to include caloric information on menus.

This past May, just days before enforcement of the regulations were set to go into effect, the FDA delayed the compliance date until May 2018 in order to “consider how we might further reduce the regulatory burden or increase flexibility while continuing to achieve our regulatory objectives, in keeping with the [Trump] Administration’s policies.”

After the delay was announced, the Center for Science in the Public Interest and National Consumers League filed a lawsuit against the FDA but later agreed to suspend the legal action once the government agency committed to implementing the changes with no further delays.

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