Food labeling for restaurants.

Stringent food-labeling regulations control the use of nutrition-related information in describing menu items. The net result for restaurateurs may be that they give no nutrition information at all.

One outgrowth of Americans' interest in health and nutrition is a concern with the nutritional

value of food sold in restaurants. In response to those concerns, consumer groups have encouraged government agencies to tighten regulations governing nutrition-related menu descriptions. One agency that has strenuously increased its regulation of the foodservice industry in recent years is the federal Food and Drug Administration (FDA).(1) This article explains how those regulations developed and what they mean for restaurant operators.

Regulation of food labeling has gradually tightened in the United States since the beginning of the century, as shown in Exhibit 1. The key statute with regard to nutrition statements on restaurant menus is the 1990 Nutrition Labeling and Education Act, which gave the FDA the power to require restaurants to substantiate any nutrient or health claim.(2) The act also established a timeline for the implementation of regulations concerning food labeling and providing nutrition information to the consumer.

In 1993 the FDA established standards for the way nutrient and health claims can be made about food products, including food sold in restaurants.(3) Restaurants are now required to substantiate any health and nutrition claims that are made on any advertisement, including menus. The supporting information must be publicly displayed in the restaurant. Nutrient or health claims do not need to be supported by scientific analysis, according to the regulations.(4) Methods that could be used to verify the nutrient content of a food item or meal include nutrient data bases and cookbooks. A restaurateur may also use any other reasonable basis to substantiate that the food item or meal meets the claim. Notwithstanding those regulations, however, the FDA has also stated that recipes for which nutrient or health claims are made should be either developed or analyzed by medical or nutrition professionals rather than being based on cookbook analysis.(5) Moreover, the FDA has unofficially modified the regulations to aim at a level of accuracy [TABULAR DATA FOR EXHIBIT 2 OMITTED] that exceeds the legislative guidelines.

Nutrition information need not be listed on the label (or menu description) of each food item when nutrient or health claims involve a combination of restaurant foods (e.g., a complete meal), but the regulations do require that such information be provided in a location that is visible when the customer is ordering or consuming the food products.(6)

The Role of Advocacy Groups

Two advocacy groups, the Center for Science in the Public Interest (CSPI) and Public Citizens (PC), have publicly pressed government regulators to force restaurants to provide the same nutrition information as is now required on packaged foods.(7) These organizations gain their influence by conducting nutritional analyses on restaurant foods and announcing the results publicly to pressure restaurant companies to label their food products. CSPI's publicity on the nutrition content of Mexican-style food was based on a study of only 19 restaurants. Yet the study's results were judged uncritically and made national news.(8)

Pressure groups used legal action to push the FDA into requiring that restaurants meet the same guidelines as package-food makers when making nutrient and health claims for their food products.(9) The FDA essentially supported the CSPI and PC legal positions by stating that "the exemption (for restaurants) was illogical." By not taking action against the lawsuit, the FDA essentially rewrote the legislation that was passed by Congress.(10)

Consumer desires. Although the CSPI may overstate its case, the center's concerns are based on a legitimate consumer desire for more thorough information about food offered for sale. The health-conscious restaurant consumer is important to restaurant operators. Over one-third of restaurant customers reported that they are concerned with the nutritional value of foods.(11) Many more restaurant chains are serving healthful menu items as time goes on. For example, the move by quick-service restaurants into offering salads and other low-fat items was a response to consumers' stated concerns. Several restaurant chains are specializing in salads and other nutrition items while other restaurants are modifying their menu items upon request to reduce the caloric and fat content.(12) Nevertheless, menu items that are based solely on nutrition concerns or that emphasize nutrition over taste have rarely been successful.

Specific Requirements

Restaurants are now required to support any nutrient or health claims made on menus, signs, placards or advertisements, whether explicit or implicit.(13) Explicit health claims must now meet specific requirements that have been established by the FDA, as delineated in Exhibit 2.

The FDA has also specified the wording of specific claims. While one might once have mentioned soluble or insoluble fiber, for example, a claim can no longer mention the type of fiber. Instead, claims regarding fiber are limited to the terms "fiber," "dietary fiber," or "total dietary fiber."(14) The requirements are rigid. Moreover, as I'll explain further in a moment, they are based on serving sizes established for packaged foods, rather than on actual servings in a restaurant.

The basic rule for making a health claim for a restaurant item is stated as follows:

The nutrient or food substance must be related to a disease or health condition for which most people or a specific group of people, such as the elderly, are at risk. Second, for a claim to be valid, the rules require significant agreement among qualified experts that the claim is supported by the totality of publicly available scientific evidence. This evidence must include data from well-designed studies conducted with recognized scientific procedures and principles.(15)

Humpty Dumpty rule. Meanings of words have also been defined by the FDA. Restaurant operators cannot use their own or dictionary definitions for terms like "reduced," "low," "light," and "very low" when referring to the nutritional value of food. Instead restaurants are required to follow the meanings that the FDA has established for these words (see Exhibit 3).(16) For example, the words "reduced fat" must be associated with menu items that have 25-percent-less fat than comparable menu items. On the other hand, the word "light" must refer to menu items that have 50-percent-less fat than comparable menu items. Attempting to meet these federal mandates can become very frustrating and confusing to operators who are attempting to provide information to their consumer.

Restaurant operators are restricted from stating that an item is made with no tropical oils unless the oil that they are currently using is low in saturated fat. At the same [TABULAR DATA FOR EXHIBIT 4 OMITTED] time, the FDA has declared that identifying the oil that is being used implies that the oil is low in saturated fat. Therefore, one can only list the oil if it is, in fact, low in saturated fat. (The FDA is expected to introduce additional labeling rules that will affect the restaurant industry. According to the FDA, these rulings were due out in late December of 1994. At time of this writing, the new rules were not released.)

The Portion-Size Problem

The chief difficulty for restaurateurs with implementing the FDA regulations is that the labeling guidelines were originally established for packaged foods sold in grocery stores and elsewhere.(17)

For over a decade the FDA and food-processing companies examined the different meanings of nutrient and health claims and serving sizes. They debated the costs of implementing the regulations for packaged food and of developing consumer awareness of the nutrient and health information on food packages.

The restaurant industry faces difficulties in implementing a set of guidelines that was established for food-processing companies. The issue of serving size provides an example. Most of the nutrition guidelines are based on a serving size for meat of 3.5 ounces. Depending on a restaurant's competitive position, however, it may be impractical and unreasonable to insist that a restaurant serve exactly a 3.5-ounce steak or 3.5-ounce portion of chicken. Consequently, many of the FDA regulations are difficult for a restaurant to follow, because the requirements are based on standard sizes for packaged food.(18)

Another example is the requirement for "low fat," which is "three grams or less of fat" per serving. A packaged food item can meet that standard by designating a package as containing, say, three servings. In contrast, it would be ludicrous for a restaurant that depends on large portion sizes for its competitive advantage to label an entree as being "three servings," even though a similar amount of packaged food might, indeed, be so labeled. Indeed, [TABULAR DATA FOR EXHIBIT 5 OMITTED] the portions of many menu items sold in restaurants probably would not meet the "three grams or less" requirement for a serving.(19) With this kind of regulation, the determination of what is a "serving" is no longer left to the marketplace.

Another complication for restaurants is that portion sizes are usually smaller for lunch than for dinner. As a consequence, one set of nutrition claims could possibly be made for the lunch menu and another set (or none at all) for the dinner menu.

Such a disparity could create great complications in a restaurant's advertisements. In this case, one would have to specify the time of day for nutrient and health claims and set limitations on the claims, all the while adhering to the FDA's word requirements.

Food-processing companies have the advantage of using machines that will portion an exact amount of food into containers for sale to the public. Despite a long history of portion control in some segments, the restaurant industry is mostly at a disadvantage in determining guests' portions because employees and [TABULAR DATA FOR EXHIBIT 6 OMITTED] guests ultimately determine portions of most food items. Furthermore, when a restaurant allows menu substitutions, as most do, its nutrition analysis is compromised.

The unstandard standard. The FDA uses the quick-service segment as an example of how the foodservice industry could adopt labeling requirements. The agency's rationale is that quick-service restaurants have standardized menus, but the reality is that even seemingly identical menu items vary considerably from store to store within the same chain. One well-known quick-service chain, a leader in providing nutrition information, publishes nearly a paragraph-long disclaimer to discuss the variability of menu items at its stores. The disclaimer states:

The nutrition information provided in this booklet is a summary of analytical data from the Pillsbury Company, Hazelton Laboratories, Inc., Silliker Laboratories, and ABC Research Corporation, combined with representative values from the United States Department of Agriculture and our suppliers. Although these data are based upon standard product formulations, variation can be expected due to sampling differences, seasonal influences, normal manufacturing tolerances, slight differences in product assembly on a restaurant-by-restaurant basis and other factors. To ensure freshness of our buns, shakes, and produce, Burger King restaurants purchase these products locally from numerous vendors, thereby introducing factors of variability, such as the need for optional ingredients in buns.(20)

In other words, the minute a restaurant owner says, "have it your way," the entire nutrition analysis changes.

Despite the current regulation that allows the use of a cookbook or database for determining menu items' nutrient values, quick-service chains are using testing laboratories to ensure that their claims are valid and accurate. That practice should stand as a warning to other restaurants that if they are using less-scientific means to support their nutrient and health claims, they should at minimum expand their disclaimer to protect themselves from liability. One such disclaimer might say "the nutritional value of an item may vary between 25 to 40 percent depending on portion size and other factors." It makes sense to find competent legal counsel regarding the liability of making nutrient and health claims for menu items. Exhibit shows how variations within a kitchen operation can create large discrepancies.

Costs. Setting aside nutrition analysis and legal counsel for a moment, the costs of implementing the federal guidelines include reprinting restaurant menus and advertising materials solely for the purpose of meeting the EDA guidelines. One estimate places those costs alone at above $500 million throughout the United States.(21) If the FDA does require that all restaurants conduct laboratory nutrient analyses on their menu items or if a restaurant desires to make a health or nutrient claim that is extremely precise, the average cost of analysis is approximately $500 per menu item, according to one chain that checked with three different laboratories capable of conducting food analysis.(22)

Considering the expense and potential for liability, the result of these new guidelines will be that many operators who are currently providing some form of nutrient and health information will remove any claims or helpful information (e.g., the little hearts found on many menus). Instead of the general public's becoming more informed by these regulations, many consumers will be even more in the dark due to restaurateurs' fear of not being in full compliance with FDA regulations.(23)

Future Labeling Requirements

A concern for every restaurateur is that these guidelines for making nutrient and health claims are only the beginning. Edward Scarbrough, from the FDA's Office of Food Labeling, stated that "Food labeling is a subject we'll continue to revisit for many years to come."(24) The National Restaurant Association has pleaded with the FDA to discuss the challenges that a restaurant must face compared to a food-processing company.(25) So far, the FDA is implementing the same nutrient and health requirements for menu items in restaurants as on packaged foods.

The FDA is currently seeking regulations that will require restaurants to provide nutrient information and list ingredients for all menu items. A spokesperson for the FDA, who requested anonymity, stated that the guidelines for restaurants will be similar to those that are now required for food-processing companies. Exhibits 5 and 6 show examples of the type of nutrient information and ingredient listing that restaurants might be required to provide their customers. The menu items shown in the exhibits are from a nutrition-information chart from a quick-service restaurant.(26) The implementation of these guidelines could cost restaurants billions of dollars.

In summary, restaurateurs should be careful to provide accurate information concerning their menu items. Restaurant operators who would like to deflect some of the FDA's rule making should bear in mind that the FDA is composed of scientists and governmental regulators who are not familiar with the food-service industry. Any lobbying effort should be based on educating the regulators in the realities of the restaurant business.

1 Robin Lee Allen, "FDA Dumps Exemption for Menus," Nation's Restaurant News, June 21, 1993, p. 72.

2 Judith Levine Willis, "Good Reading for Good Eating," FDA Consumer: The Magazine of the U.S. Food and Drug Administration, May 1993, p. 10.

3 Willis, pp. 24-26.

4 "Outgoing Administration Exempts Menus from New Labeling Law," Restaurants USA, February 1993, p. 8.

5 Allen, p. 72.

6 Federal Registry, "Nutrition Labeling of Restaurant Foods," No. 101.10.

7 Allen, p. 72

8 Pat DiDomenico, "Holy Frijole! CSPI Takes a Swing at Mexican Restaurants," Restaurants USA, Vol. 14, No. 8 (September 1994), p. 11.

9 Allen, p. 72.

10 Allen, p. 72.

11 DiDomenico, p. 12.

12 Pat DiDomenico, "CSPI Advocacy Group Skewers Chinese Food: Are You Next?" Restaurant USA, Vol. 13, No. 11 (December 1993), p. 10.

13 Allen, p. 1.

14 Willis, p. 27.

15 Willis, p. 23.

16 Willis, p. 23.

17 Willis, p. 10.

18 Allen, p. 72.

19 Allen, p. 72.

20 Your Guide to Nutrition at Burger King (Miami, FL: Burger King Corporation, 1994), p. 1.

21 Allen, p. 72.

22 Your Guide to Nutrition at Burger King, p. 2.

23 Allen, p. 72.

24 Willis, p. 19.

25 Allen, p. 72.

26 Your Guide to Nutrition at Burger King, p. 2.

RELATED ARTICLE: Exhibit 1

Milestones in U.S. food labeling

1906 The Federal Food and Drugs Act and the Federal Meat Inspection Act authorized the federal government to regulate the safety and quality of food. The responsibility falls to the U.S. Department of Agriculture and its Bureau of Chemistry, FDA's predecessor.

1913 The Gould Amendment requires food packages to state the quantity of contents.

1924 In U.S. v. 95 Barrels Alleged Apple Cider Vinegar, the Supreme Court rules that the Food and Drugs Act condemns every statement, design, or device that may mislead, misdirect, or deceive, even if technically true.

1938 The Federal Food, Drug, and Cosmetic Act replaces the 1906 Food and Drugs Act. Among other things, it requires the label of every processed, packaged food to contain the name of the food, its net weight, and the name and address of the manufacturer or distributor. A list of ingredients is required on certain products. The law also prohibits statements in food labeling that are false or misleading.

1950 The Oleomargarine Act requires prominent labeling of colored oleomargarine to distinguish it from butter.

1957 The Poultry Products Inspection Act authorizes USDA to regulate, among other things, the labeling of poultry products.

1966 The Fair Packaging and Labeling Act requires all consumer products in interstate commerce to contain accurate information to facilitate value comparisons.

1969 The White House Conference on Food, Nutrition, and Health addresses deficiencies in the U.S. diet. It recommends that the federal government consider developing a system for identifying the nutritional qualities of food.

1973 FDA issues regulations requiring nutrition labeling on food containing one or more added nutrients or whose label or advertising includes claims about the food's nutritional properties or its usefulness in the daily diet. Nutrition labeling is voluntary for almost all other foods.

1975 Voluntary nutrition labeling, postponed from its originally planned 1974 date, goes into effect.

1984 FDA adds sodium to the list of required nutrients required in nutrition information, and potassium to the list of optional nutrients. Effective in 1985, the new regulation also defines terms, such as "low sodium," that may be used on labels to make sodium-content claims.

1988 Surgeon General C. Everett Koop releases The Surgeon General's Report on Nutrition and Health, the federal government's first formal recognition of the role of diet in certain chronic diseases.

1989 The National Research Council of the National Academy of Sciences issues Diet and Health: Implications for Reducing Chronic Disease Risk, which presents additional evidence of the growing acceptance of diet as a factor in the development of chronic diseases, such as coronary heart disease and cancer.

Under contract with FDA and USDA's Food Safety and Inspection Service (FSIS), the Food and Nutrition Board of the National Academy of Sciences convenes a committee to consider how food labels could be improved to help consumers adopt or adhere to healthy diets. Its recommendations are presented in Nutrition Labeling: Issues and Directions for the 1990s.

FDA publishes an advance notice of proposed rule-making on food labeling and, with FSIS participating, holds a series of four public hearings around the country.

1990 FDA proposes extensive food-labeling changes, which include mandatory nutrition labeling for most foods, standardized serving sizes, and uniform use of health claims.

The Nutrition Labeling and Education Act (NLEA) reaffirms the legal basis for FDA's labeling initiative and establishes an explicit timetable.

1991 FDA issues more than 20 proposals to implement NLEA. In addition, the agency issues a final rule that sets up a voluntary point-of-purchase nutrition information program for raw produce and fish. FSIS unveils its proposals for mandatory nutrition labeling of processed meat and poultry and voluntary point-of-purchase nutrition information for raw meat and poultry.

1992 FDA's voluntary point-of-purchase nutrition information program for fresh produce and raw fish goes into effect.

1993 FDA issues the final regulations implementing NLEA. Regulations covering health claims become effective May 8, 1993. Those pertaining to nutrition labeling and nutrient content claims are effective May 8, 1994.

FSIS issues regulations for nutrition labeling of meat and poultry, effective July 6, 1994.

RELATED ARTICLE: Exhibit 3

Government-approved nutrition claims

Here are examples of the meanings of some descriptive words for specific nutrients:

Sugar

Sugar free: less than 0.5 grams (g) per serving

No added sugar, Without added sugar, No sugar added:

* No sugars added during processing or packing, including ingredients that contain sugars (for example, fruit juices, applesauce, or dried fruit).

* Processing does not increase the sugar content above the amount naturally present in the ingredients. (A functionally insignificant increase in sugars is acceptable from processes used for purposes other than increasing sugar content.)

* The food that it resembles and for which it substitutes normally contains added sugars.

* If the food doesn't meet the requirements for a low- or reduced-calorie food, the product bears a statement that the food is not low-calorie or calorie-reduced and directs consumers' attention to the nutrition panel for further information on sugars and calorie content.

Reduced sugar: at least 25 percent less sugar per serving than reference food

Calories

Calorie free: fewer than 5 calories per serving

Low calorie: 40 calories or less per serving and if the serving is 30 g or less or 2 tablespoons or less, per 50 g of the food

Reduced or Fewer calories: at least 25 percent fewer calories per serving than reference food

Fat

Fat free: less than 0.5 g of fat per serving

Saturated-fat free: less than 0.5 g per serving and the level of trans fatty acids does not exceed 1 percent of total fat

Low fat: 3 g or less per serving, and if the serving is 30 g or less or 2 tablespoons or less, per 50 g of the food

Low saturated fat: 1 g or less per serving and not more than 15 percent of calories from saturated fatty acids

Reduced or Less fat: at least 25 percent less per serving than reference food

Reduced or Less saturated fat: at least 25 percent less per serving than reference food

Cholesterol

Cholesterol free: less than 2 milligrams (mg) of cholesterol and 2 g or less of saturated fat per serving

Low cholesterol: 20 mg or less and 2 g or less of saturated fat per serving and, if the serving is 30 g or less or 2 tablespoons or less, per 50 g of the food

Reduced or Less cholesterol: at least 25 percent less and 2 g or less of saturated fat per serving than reference food

Sodium

Sodium free: less than 5 mg per serving

Low sodium: 140 mg or less per serving and, if the serving is 30 g or less or 2 tablespoons or less, per 50 g of the food

Very low sodium: 35 mg or less per serving and, if the serving is 30 g or less or 2 tablespoons or less, per 50 g of the food

Reduced or Less sodium: at least 25 percent less per serving than reference food

Fiber

High fiber: 5 g or more per serving. (Foods making high-fiber claims must meet the definition for low fat, or the level of total fat must appear next to the high-fiber claim.)

Good source of fiber: 2.5 g to 4.9 g per serving

More or Added fiber: at least 2.5 g more per serving than reference food

Carl A. Boger, Jr., Ph.D., is at the University of Wisconsin-Stout, in the department of hospitality and tourism management.