Nutrition Labeling and Alcohol: Where are We Now?

2016

Joan McGlockton, vice president of food policy for the National Restaurant Association, Lynne Omlie, general counsel for the Distilled Spirits Council of the United States, and Maeve Pesquera, director of wine for Fleming’s Prime Steakhouse & Wine Bar, were the panelists for the 2016 VIBE Conference workshop entitled “The 5 Ws and 1 H of Nutrition Labeling and Alcohol: Where are We Now?” The topic at hand was the Affordable Care Act, Section 4205, and nutrition labeling. We already know the when of nutritional labeling. Compliance with Section 4205 is required by December 1, 2016 (or the date that is one year after the date on which the Secretary of Health and Human Services publishes Level I Guidance). But what of the other Ws and the H?

The NRA’s VP of food policy was up first. McGlockton started things off with who is covered by the new rule. As she explained it, the rule applies to restaurants and similar retail food establishments (SRFEs):

  • that are part of a chain with 20 or more locations,
  • doing business under the same name, and
  • offering for sale substantially the same menu items.
  • It also applies to restaurants and SRFEs that register with the FDA to be covered voluntarily.

With the when and who covered, McGlockton explained the what. Those to whom the rule applies will face the following requirements on menu and menu boards:

  • Calorie information for standard menu items on menus, menu boards, foods on display, and self-service foods.
  • Succinct statement on daily caloric intake.
  • Statement on availability of additional written nutrition.
  • Additional written nutrition information will be required inside your establishment, along with substantiations and certifications.

Beverage alcohol is where things get rather technical. First off, they’re not covered in the proposed rule, except for self-service beverage alcohol such as beers available for sale from a cooler near a register. Alcohol beverage such as mixers and bottles of spirits that are on display (behind the bar, for example) that are not self-service foods and not listed on the menu or menu boards are exempt from the rule. Nutritional information must be offered for how the beverage alcohol product is prepared, along with how it is offered for sale. Let’s break that down using wine:

  • If the wine is sold by the glass, the calorie information must be for the glass of wine.
  • If the wine is sold by the bottle but served by the glass, the restaurant can opt to either provide the calorie information for the entire bottle or per glass, provided the number of glasses in the bottle is also included. So, a declaration such as “120 calories/glass, 6 glasses/bottle” would be acceptable.
  • Variable menu item rules apply to wine, beer, and spirits that are offered in different varieties, flavors, and brands.

In terms of calorie disclosures, things get quite technical again.

If you’re using just a generic term:

  • 2 varieties available, then a slash can be used: Red wine (120/140 calories)….$X.XX
  • 3 or more varieties of beer available, then a range can be used: Beer (70-120 calories)….$X.XX
  • If each variety or flavor is listed separately, the calorie declaration must be for each item:
    • Mary’s Beer (70 calories)….$X.XX
    • Pete’s Beer (90 calories)….$X.XX
    • Frank’s Beer (120 calories)….$X.XX

Now, if the beverages have the same calorie declaration, it is permissible to group them within a single calorie declaration…if the declaration specifies that the listed calorie amount represents the calorie amounts for each individual flavor or variety:

  • Wines by the glass: Red wine (Pinot Noir, Merlot, Cabernet Sauvignon): 120 calories….$X.XX
  • Wines by the glass: Red wine….120 calories….$X.XX (Pinot Noir (description), Merlot (description), Cabernet Sauvignon (description))

The new rule has caused many operators to inquire about beer on tap. Specifically, they’ve asked if calories must be listed on the top of the nozzle or on a sign adjacent to the nozzle if there is a menu or menu board that lists beer on tap – if it is not self-serve and is available upon request behind the bar – along with corresponding calorie declarations that can be viewed at the same time that the beer is selected by consumers. The answer to that pressing question? No. If the menu or menu board can be viewed at the same time the customer is selecting the beer that is available on tap, additional calorie declarations on the top of the nozzle or on a sign adjacent to the nozzle are not required.

Compliance highlights were also presented during McGlockton’s portion of the workshop. There is reasonable basis flexibility for nutrient declarations: Nutrition labeling must be accurate and consistent with the specific basis used to determine nutrient values. The means used to arrive at the nutrient values is also flexible:

  • Nutrient databases such as the USDA Nutrient Database for Standard Reference
  • Cookbook
  • Information provided by the manufacturer
  • Lab analysis
  • Nutrient facts labels
  • Serving facts labels
  • Other reasonable means formulas
  • It is also permissible to combine bases or use multiple sources.

Lynne Omlie of DISCUS addressed the challenges the information McGlockton shared present to operators, not the least of which is the fact that nutrition information requirements of menu labeling rules are new to the industry. There’s also the fact that the FDA’s New Labelling and Education Act (NLEA) does not apply to beverage alcohol, it’s the Tax and Trade Bureau (TTB) that has jurisdiction over beverage alcohol labelling. Making things more convoluted, the TTB’s calculation methods and rounding rules differ from those used by the FDA. The TTB uses 6.9 calories per gram of alcohol and rounds to the nearest calorie. The FDA, on the other hand, uses 7.07 calories per gram of alcohol and rounds to the nearest 10-calorie increment if the value is greater than 50 calories. Operators must comply with the TTB’s rules as a condition of doing business.

Obviously this disparity between the FDA and TTB is problematic. For those to whom the new rules cover, the lack of uniformity between the two governing bodies represents a threat in the form of possible labelling litigation. Adding to the problem is the lack of a source that provides the required values of the tens of thousands of brands that are on the market. Because all of the information isn’t readily available, the establishments covered by the new rules will have to either pay for costly laboratory testing or remove items from their menus. Either way, there will be a negative financial impact on the profitability of restaurants and the beverage alcohol industry as a whole.

Solutions need to be considered and proposed if covered establishments are to overcome these obstacles. Omlie suggested working with the FDA to amplify draft guidance document with the following:

  • Use of TTB’s calculations and rounding rules to satisfy menu labeling rules for all products, not only those with containers displaying a serving facts panel.
  • A more simplified format for beverage alcohol that would only require 4 nutrients.
  • Sanctioning industry calculators to determine nutrient values as a reasonable basis.
  • Use of a single calorie declaration for spirits, beer or wine in one location on the menu, with minor caloric variations among many brands and use of the TTB’s tolerance rules. Grouping calorie declarations is reasonable and simple.

Fleming’s Maeve Pesquera addressed the industry’s “new normal.” Operators need to understand that nutritional analysis and calorie updates are now a part of their everyday business, along with their ideation and menu pipelines. This means that if you haven’t already, you need to invest in an expert and a database. You are going to have to seriously consider your menus and menu items, determine how you’re going to label items and how often you’re going to update the required information, and address your menu layout in order to understand the challenges you’re going to face. Standardizing your recipes will make for easier analysis and better ensure adherence by each location in your chain. Your operations will need to be streamlined to account for and address franchise variations, and you’ll need to streamline your purchase ordering.

New rules mean new information, and new information means new training for your staff. Pesquera recommended studying the new rules yourself to gain the knowledge you’ll need to sound natural and avoid injecting your own personal opinion when addressing the questions that are sure to come up during training. Expect to be asked why there are calorie declarations. She suggests answering this question and others with clear, concise facts devoid of opinion and political statement. It’s also a great idea to prepare your staff to provide guests with lower calorie options available on your menus because guests are sure to ask. Finally, operators will want to test menus and training plans to determine if there will be a negative financial impact. Prepare alternate recipes and be ready to adjust them should you need to overcome financial challenges.