Thursday, August 30, 2012

How Many Calories Are in That Burger?:
PPACA Makes Sure You Know


We all occasionally grab a quick bite on the go. But what if your favorite drive-through restaurant posted calorie information and you could see that the Hardee’s Thickburger you planned to order contained 910 calories?  A healthy caloric intake for an average person is 2,000 calories per day, something which would also be stated on the menu.  The burger just became one-half of your recommended daily allotment of calories. That information would definitely prompt anyone to reconsider their choices.

Menu labeling, as outlined in the Patient Protection and Affordable Health Care Act (PPACA), might actually change the way we eat when we eat out!  That is exactly what the National Restaurant Association and the National Association of Convenience Stores are grappling with.  In the wake of the Supreme Court upholding PPACA, it is not just the medical and insurance communities buzzing. The food industry too is wading through its own set of new rules regarding how it goes to market and otherwise interacts with consumers.

As outlined in Section 4205, nutritional menu labeling is required for chain restaurants across the country. The provisions include labeling requirements for restaurants and food vendors with 20 or more outlets. Calories have to be posted on menus and menu boards, including drive-through menus. Written display tags, with additional information, including fat, saturated fat, carbohydrates, sodium protein, and fiber, must also be made available upon request.

Vending machine companies that operate at least 20 machines are also subject to these requirements.

For buffet-style or self-serve restaurants, a sign must be placed adjacent to each food and beverage item listing calories per item or serving.  There are some exceptions, for example, for items not listed on the menu, such as condiments, daily specials or temporary offerings. Additionally, if an item appears on the menu less than 60 days per calendar year, or is a menu item that is being test-marketed for less than 90 days, they are both exempt.

The Food and Drug Administration (FDA) considers Section 4205 effective immediately. However, without detailed guidance from FDA, these provisions cannot be enforced.  The final FDA regulations are expected by the end of 2012.  Industry implementation would become effective six months after publication, sometime in early 2013.  If a restaurant that is not required to comply with Section 4205 voluntarily registers with FDA and follows the federal disclosure guidelines, it is not subject to any state or local nutrition disclosure requirements.

There is more at stake here than complying with disclosure regulations. For owners and operators in the food industry, there are real costs to be considered. The new menu requirements alone will require printing new menus and menu boards. Nutritional analysis may also have to be performed to report the information accurately to the consumer. All of these added reporting requirements could add thousands to the cost of operating the average chain restaurant and, therefore, could significantly affect the price we pay to dine out.

It is interesting to contemplate how consumers will react to menu labeling. Will it help improve the health of our country? The jury’s still out, but we are eagerly anticipating the verdict.


Molly Lewis
mlewis@mmlk.com
McBrayer, McGinnis, Leslie & Kirkland, PLLC
Lexington, Kentucky

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