The Food and Drug Administration (FDA) released final rules today on menu labeling for chain restaurants. In the proposed version published in 2011 FDA excluded alcohol beverages, and asked for comments on that exclusion. The final version does include alcohol beverages as a food item covered under the regulations, in a reversal of FDA’s proposed rules.
First, here’s some background. FDA issues proposed rules on April 6, 2011 entitled “Food Labeling; Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments.” The FDA menu labeling rules are required by the Affordable Care Act as a means of educating consumers and promoting public health. Restaurants with 20 or more stores doing business under the same name fall under the rules.
The Brewers Association (BA) commented in response to the menu labeling rules to address issues unique to beer. BA also joined a separate comment submitted by the alcohol beverage industry coalition that we work with on federal regulatory matters. This coalition has worked on serving facts/nutritional labeling, allergen labeling, funding of regulatory agencies, an OSHA matter and a variety of FDA issues related to provisions of the Food Safety Modernization Act, including produce rules, human food rules, animal feed/spent grain rules and menu labeling. The National Restaurant Association (NRA) was heavily involved in the Affordable Care Act menu labeling regulations and the regulatory provisions that followed, and communicated with the alcohol beverage coalition. One of NRA’s concerns was potential inconsistent menu labeling rules in municipalities and states that currently force chain restaurants to comply with a patchwork of conflicting regulations.
While the issue directly impacts our brewpub group members in deep ways across all food and beverages offered, it impacts all brewers whose beer is sold in chain restaurants. While we are still doing our full legal review of what the rules mean, the rules state:
“…covered establishments may also choose to use a database such as the USDA National Nutrient Database for Standard Reference as the reasonable basis for making their nutrient content disclosures, including disclosures for nutrients that do not currently appear on alcoholic beverage labels.”
Therefore, it would be up to the retailer to adopt the standard reference, which would simplify matters in terms of reducing the amount of text on menus and menu boards, or choose to gather the information supplier by supplier.Should any chain restaurants choose the option of not accepting the standard reference, brewers who wish to have their beers in these chains would likely receive a request for the specific detail on the nutritional components. For some smaller brewers that means you would need to make a decision of whether to do the analysis required for all of the nutritional information and provide it or not have your beers available in that chain.
The thing that really bugs me about these regulations is that we are clearly in a two-agency regulatory system of the U.S. Alcohol and Tobacco Tax and Trade Bureau (TTB) for labeling, advertising and tax collection, and the FDA for product safety, spent grain handling and now nutritional information. The statement of average analysis that TTB currently allows on labels on a voluntary basis include alcohol content, serving size, calories, carbohydrates, fat and protein per serving. FDA’s requirements for chain restaurants include this information plus the establishment must also have information on sodium, calories from fat (if the beer has a fat-containing ingredient), and other nutrients if not insignificant. I am not sure yet if disclosure of cholesterol, dietary fiber and sugars will be required as it will for food that is not alcohol. One oddity of the two-scheme issue is that even if a restaurant is required to have available information on sodium or fiber or calories from fat, the TTB would not approve a label with this information on it.
When I think of how seasonal beers may fit this regime, there is a statement in the rules that “Food that is part of a customary market test means food that appears on a menu or menu board for less than 90 consecutive days in order to test consumer acceptance of the product.” That may mean that a seasonal beer that is on the menu for less than 90 days would not need the detail available.
Mixed drinks that are not standardized by menu, which FDA considers spirits bottles as “food on display,” are not standardized in terms of recipe, and are exempt from the ruling.
Self-service beers, such as in a circumstance where a customer can open a cooler door and grab a beer and pay at register would be covered under the regulations.
I suspect I’ll have more later when FDA issues more guidance for industry or staff and our lawyers take a deeper look at what it all means.
November 25, 2014.