FDA dumps exemption for menus - Food and Drug Administration food-labeling requirements

WASHINGTON -- Restaurateurs making health and nutrition claims on their menus must comply with food-labeling requirements.

As expected, the Food and Drug Administration has reversed its earlier decision to exempt menus from food-labeling requirements, forcing operators to now either substantiate claims like "lite" and "lowfat" or eliminate them -- just as food makers are required to do.

"The restaurant industry is very disappointed with this last-minute reversal, especially since we hoped [the] FDA would work with us to develop a lexicon of nutritional terms that apply to menu items yet are still compatible with the terms used on packaged foods," said Stephen E. Elmont, president of the National Restaurant Association.

Under the FDA's new proposal, restauranteurs making nutritional or health claims on their menus must now provide a reasonable basis for making the claims--the same requirement for restaurant signs, placards and table tents. Menus are not expected to comply with the nutrition disclosure requirements demanded on food product labels under the Nutrition Labeling and Education Act of 1990.

"If you tell people that something is good for them, there should be a reasonable basis," said FDA commissioner David A. Kessler, M.D. "Meals eaten out count just as much toward healthy eating as the meals we eat at home, and claims on menus should have a reasonable basis."

The FDA will be flexible in deciding what constitutes a reasonable basis, Kessler said, suggesting that recipes created by recognized medical or dietary groups would be sufficient.

Industry groups have argued all along, however, that a restaurant meal in no way parallels a manufactured food product and therefore should not be held to the same NLEA requirements.

"A restaurant meal is a very different thing from a mass-produced can of peas," Elmont said. "For one thing, a restaurant meal can have significant variations from day to day, depending on available ingredients, and even from serving to serving. In effect, these regulations put a straitjacket on the chef."

Restaurant menus -- but not placards, signs and table tents -- had been exempted in January, when the FDA first released the labeling requirements dictated under the NLEA. The exemption had been wrangled out of a power struggle between the Bush administration, FDA and U.S. Department of Agriculture over label formats, the fat content of foods and guidelines for health claims.

The FDA reversed its decision under pressure from a lawsuit filed by two consumer groups -- Ralph Nader's Public Citizen and the Center for Science in the Public Interest. The groups sued the FDA in March, charging that it was denying restaurant customers nutritional information guaranteed by law.

"As one of the co-plaintiffs in the litigation that brought about this announcement, we are glad to see the FDA take this action," said Michael Jacobson, CSPI's executive director. "The exemption for restaurants didn't make sense, and it couldn't be justified legally."

Ranks within the FDA also agreed that the exemption was illogical.

"Our society has changed in such a way that much of the food we eat day to day is eaten out of the home as well as in, and the whole idea was to provide American consumers with guidelines for a sensible diet," FDA spokesman Chris Lecos said.

Industry watchdogs are calling the reversal politically motivated Indian giving.

"We had made our case, and it seems to have turned into a case of Bush vs. Clinton," said Terrie Dort, executive director of the National Council of Chain Restaurants. "They have politicized the whole thing. The Bush administration had accepted the merits of our arguments, and now they've been thrown out the window."

The FDA estimates that about 12,000 restaurants nationwide will alter their menus at a cost ranging from $1 million to $13.5 million. The NRA puts that cost at about $500 million.

Industry groups predict that many restauranteurs will drop claims from their menus altogether to avoid bureaucratic hassles, negating the NLEA's original purpose of informing and educating consumers.

"I think consumers are now going to get less information rather than more," Dort said. "[Restauranteurs] will alter their practices and stop making nutrition claims, not because they are false, but because it will open up a whole morass of what they must comply with. Now, when you have a person who's really interested in lower fat, they won't find those explanations on the menu."

The FDA will now hold a public-comment period concerning the menu requirement. Both the NRA and NCCR have said they will present their arguments again. The FDA expects to publish the finalized regulation by October. Restauranteurs will then have four months to bring menu health claims into compliance and 12 months to bring nutritional claims into compliance.

State and local agencies will be responsible for enforcing the NLEA in restaurants, Lecos said. For that reason, penalties for non-compliance will vary.

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