FDA Releases Details on How Retail Food Establishments and Vending Machine Operators with Fewer than 20 Locations Can Choose to Become Subject to the New Federal Menu Labeling Requirements

July 21, 2010

The U.S. Food and Drug Administration today issued a Federal Register notice that explains how restaurants and similar retail food establishments not covered by the new federal menu labeling requirements, such as establishments with fewer than 20 locations, and vending machine operators with fewer than 20 vending machines, can voluntarily register to become subject to the new federal requirements.

Section 4205 of the Patient Protection and Affordable Care Act sets new federal requirements for nutrition labeling for foods sold at certain chain restaurants and similar retail food establishments and for certain foods in vending machines. In general, the law covers restaurants and similar retail food establishments with 20 or more locations doing business under the same name and offering for sale substantially the same menu items and vending machine operators with 20 or more machines. Restaurants and similar retail food establishments that are covered under the new federal rules are no longer subject to state or local menu labeling laws, except to the extent they are identical to the federal requirements.

Smaller chain and individual retail food establishments are not subject to the new federal law. However, they may still be subject to all state and local nutrition labeling laws and associated regulations. If these restaurants and similar retail food establishments voluntarily register with the FDA, they will no longer be subject to state or local nutrition labeling requirements unless those requirements are identical to federal requirements.

Vending machine operators are in a different position. Under section 4205, no state or locality may have a requirement concerning vending machines that is not identical to the federal requirements, regardless of how many vending machines the operator owns or operates.

Earlier this month, the FDA opened a public docket to collect comments and information to help the agency implement the new federal law. Docket number FDA-2010-N-0298 can be accessed at www.regulations.gov. The docket is opened for comments for 60 days from its publication date of July 7, 2010.

The registration notice along with the public docket can be viewed at http://www.fda.gov/menulabeling.

In the coming months, the FDA plans to release further documents to assist industry in understanding and complying with the new federal law.