2017 FDA Menu Labeling Rules and Your Mobile App

Well, the FDA’s long-awaited menu labeling rules are almost here.  Within a few months, all of your favorite Mexican chain restaurants, and any other restaurant with more than 20 locations, will have to start telling you exactly how many calories are really in those quesadillas. The FDA went through a lengthy process to turn the well-intentioned law (21 U.S.C. § 343(q)(5)(H)) into a set of very specific rules (21 C.F.R. 101.11).

In that time, the restaurant industry saw the start of a seismic shift in consumer ordering behavior: from the restaurant counter to the mobile device. So, what do the new menu labeling rules mean for your restaurant’s mobile ordering app? And who’s already doing it well and…not so well? Here’s our menu of what you should know:

The Basics (50-200 cal.)

The new labeling rules will require calorie counts to be disclosed on any “primary” menu offered by any “restaurant or similar retail food establishment” with more than 20 locations. The FDA defines “menu” specifically to include “electronic” menus and “menus on the internet,” so the rule will apply to all mobile app and mobile web menus.

A “primary” menu is the menu “from which a customer makes an order selection.” So, while it is clear that ordering apps will be subject to the rule, informational-only menus on the mobile device may be exempt in some cases.

The rule requires calorie counts to be disclosed for all “standard menu items.” The definition of “standard” items effectively excludes only daily specials and “custom orders.” The term “custom orders” is particularly vague in the mobile world, where every order can be as varied as the customer wants (as an example, Cava Grill’s mobile app boasts 58,978,800 combinations).

The term “custom” was meant by the FDA to refer to a request to remove an ingredient that is always contained in that item (think: hold the bacon for a sandwich that is always made with bacon). “Custom” doesn’t refer to a salad or burrito bowl that can be constructed from many available ingredients.

The rule also provides specific requirements for the format and placement of the calorie disclosure. The word “calories” or “cal.” along with the count must be on the menu adjacent to either the name or price of the menu item. The calorie count must be at least as large as the menu item or price, and must be in the same color (or at least as conspicuous a contrast with the background).

Finally, in addition to the calorie count, the rule requires that a menu includes on every “page” the following statement: “2000 calories a day is used for general nutrition advice, but calorie needs vary.” And on the “first” page, a statement that: “Additional nutrition information available upon request.”

Advanced Fare (300-600 cal.)

If your mobile ordering app includes a Mexico City Taco Salad Bowl with three sizes, seven dressing options, and twenty-one additions to choose from… then the impending rules may seem daunting. Although the FDA has not answered every question, they have addressed a number of specific scenarios.

Where an item is offered in multiple sizes, each size has to have its own calorie disclosure. But, if that item is a “combination meal” (such as a burger and fries) the variance in calories due to size can be disclosed as a range (i.e., 100-250 cal.) OK, got it.

But a Taco Salad Bowl isn’t a “combination meal.” For variable items like salads and bowls, when the menu lists toppings that can be added to a menu item, it must disclose both the calories for the basic preparation and the added calories (as “Added Cal.” and not as “+” or “-”) for each separate topping item. If the calories change depending on the size of the base item, the calories for each item can be listed as a range. Phew.

Where there are changes in calories due to variations in flavor or preparation, such as chicken that can be grilled or fried, or a grilled-cheese sandwich with cheddar or swiss, the calories must be disclosed for each individual preparation variant if the variant is listed on the menu. In most digital ordering experiences, that will be the case. If for some reason the options were not individually listed, the calories can also be disclosed as a range.

But what about the build-your-own salad ordering experience? Chances are that these types of foods will be treated as variable-topping items, requiring a disclosure of the calories associated with both the base and each optional item (and in a range if the additions vary by size).

Heavy Lifting (700-1250 cal.)

We’ve already seen some mobile apps adding calorie information ahead of the rule. How are they doing?

Well, among the biggest players, Starbucks’ mobile app includes a “Nutritional Information” section on the bottom of the page (it requires a scroll). But, it only includes calories for the base item. They don’t yet tell you how many calories that sixth shot of white chocolate mocha sauce adds, even though it is listed as a separate item within the app.

Taco Bell’s mobile app provides a calorie “range” in the headline of the item page (though in a font smaller than both the price and the item description). While Taco Bell’s app also lists the price of individual add-ons, it does not yet list the calories in each. It’s also doubtful that the 20-calorie “range” disclosed for the Chalupa Supreme covers both the base item and the item with added guac, spicy ranch dressing, and extra nacho cheese sauce.

But there are some apps using mobile technology to their advantage. Potbelly Sandwich Works launched a new mobile ordering and pay-at-counter rewards app this year that has a built-in, dynamic calorie display feature. As the user selects a size, a bread type, a cheese, and toppings, the in-app calorie display for the item changes in real time to reflect the customized order.

Whatever your menus and mobile app look like, the new FDA rules will likely cause some changes. But, when you understand rules the updates become that much easier. To learn about a restaurant with a successful mobile app (and who sells fantastic Mexican food!), download the Taco Time case study below:

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Brian Carroll

Brian Carroll

Brian Carroll is Executive VP at LevelUp and the company's Chief Legal Officer. Brian joined LevelUp in January 2014 from the Boston law firm of Foley Hoag, where he was a partner focused on intellectual property law and strategy. Brian now focuses on a wide range of legal and regulatory issues that affect LevelUp and its Agency clients, and interfaces regularly with federal and state agencies. When he's not keeping the LevelUp team out of trouble, you can find him chasing his three awesome kids, skiing, sailing, and chowing down at El Pelon (or District Taco or TaKorean, when he's in D.C.).