Franchising & Distribution Law Blog

As a result, on your next visit to a restaurant, motor fuel station or fast food drive-thru, you will see something new when making your selection from the menu: nutritional information. The federal menu labeling rules apply to restaurants and similar food establishments if they are part of a chain of 20 or more locations that are doing business under the same name and selling substantially the same menu items for restaurant-type foods. The FDA has projected that the rules could apply to nearly 300,000 different establishments nationwide. The rules require establishments to display nutrition information — specifically, calories — for standard menu items and, upon request, provide additional written nutrition information.

In late 2017, the FDA issued additional guidance to respond to the practical questions facing those who need to comply with the rules: Do I need to include information on a coupon? What are the requirements for a salad bar? Do I have to provide the information on the menu in the store and online? The guidance addresses many questions, for example, clarifying that, generally, the rules should not apply to marketing materials such as coupons and billboards.

Against the backdrop of the looming compliance deadline, in February 2018, the House passed the Common Sense Nutrition Disclosure Act, which would ease the rules and, critically, limits civil liability. The question at this point is: Will the bill pass in the Senate before the compliance deadline in May? For now, retailers are preparing to meet the compliance deadline.

As we’ve previously highlighted, identifying nutrition information on menus presents potential risk, including to franchisors, in addition to regulatory compliance in the form of consumer actions. Make sure you are in compliance and prepared if faced with such a lawsuit.