FDA fresh labeling regulations go 'light' on menus - Food and Drug Administration exempts restaurant menus from regulations - includes list of FDA legal standards for promotional claims - Column

Throughout the summer of 1992, lobbists and members of the National Restaurant Association tried to get one simple message across to the Food and Drug Administration:

Restaurants are not supermarkets. It seems like a pretty obvious fact. Regulations drawn up for labeling a can of peas cannot logically be applied to an individually prepared restaurant meal. For restaurants, supply lines are too irregular. Availability of ingredients fluctuates daily. And even in fast-food chains, standardization is nonexistent.

Yet when the FDA proposed its regulations interpreting the Nutrition Labeling and Education Act in November 1991, the agency refused to draw the distinction. Instead, the FDA drew up a rigid set of standards that operators would have to meet if they wanted to make nutrition-related claims on their menus, such as "light" or "low calorie."

In meeting after meeting, the association tried to point out why these proposed regulations would not work. In the end, the decision was laid on the desk of then-President Bush. The president, in agreeing with our arguments, ruled that restaurant menus are exempt from the new food labeling laws. Such regulations, Bush concluded, would place an undue burden on small business.

New rules for signs, posters:

The foodservice industry, however, did not completely dodge the regulation bullet. Although restaurant menus were exempted, point-of-sale promotional materials are subject to the new labeling requirements.

Under the law, any nutritional or health claim made on a poster, sign or table tent must meet the nutritional standards set out by the FDA (see adjoining chart).

For example, if your restaurant publicized its "low-calorie chicken sandwich" on a window sign, the sandwich would, according to FDA specifications, have to contain 120 calories or less per 100-gram serving. The same statement on a menu, however, is not subject to the new law. The question then arises: What's a sign and what's a menu?

Nowhere in the 2-inch-thick book of regulations is there a definition for either word. For many restaurants, a wall-mounted signboard or chalkboard is the menu, and, therefore, should not be subject to the regulations. We are assuming that the regulators intended the broadest definition of the term "menu" to apply and all menu formats should be exempt.

In addition, it also appears that packaged foods sold through restaurants -- signature items such as barbecue sauces -- will now have to follow new labeling rules. That includes affixing the newly revised label showing fat, cholesterol and sodium as percentages of recommended daily intake.

Restaurant companies with more than 10 units must begin complying with initial elements of the law by May 8. Smaller restaurants -- those with 10 or fewer units -- are given until May 8, 1994, to begin complying.

Legal, legislative challenges:

Several times in the past two decades, FDA and other federal agencies have studied the notion of menu labeling. Each time the idea has been rejected as too impractical and financially burdensome. This latest repudiation of menu labeling is certainly great news for the foodservice industry. But it is all too clear that this decision does not signal the death of this issue.

A handful of consumer groups are publicly questioning why menus were exempted from the rules. One group has even threatened to mount a court challenge against the FDA on the exemption question. And in Congress, veteran Sen. Howard Metzenbaum, D-Ohio, suggested the menu exemption "is inconsistent with the law" and predicted it would be overturned by the courts or the Clinton administration.

But for the moment we applaud the FDA's judgment in exempting restaurant menus from the NLEA regulations. The decision confirms what we've said all along: Regulations intended for mass-produced packaged foods are simply unworkable in a restaurant setting.

If you want additional information on this very complex issue, the National Restaurant Association is producing two helpful publications.

A special edition of our Washington Weekly explored the entire labeling issue. And this spring our research department is publishing a booklet of guidelines for providing nutrition and ingredient information to your customers.

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