June 28, 2012
Legal Center analysis: Health care reform is intact, including menu labeling
By Bob Harrison
Wilson, Elser, Moskoqitz, Edelman & Dicker
In a decision announced today, the U.S. Supreme Court upheld the 2010 Patient Protection and Affordable Health Care Act. In the opinion announced by Chief Justice John Roberts, the court upheld the individual mandate, reasoning that Congress has effectively increased taxes on those who have a certain amount of income, but choose to go without health insurance. “Such legislation is within Congress’s power to tax,” Roberts said.
The court also held that Congress cannot “penalize states that choose not to participate in the expansion of Medicaid by taking away their existing Medicaid funding.”
The decision effectively leaves the balance federal health care reform intact, including the provisions of Section 4205 regarding nutritional menu labeling for restaurants across the country.
With enactment of the new law and detailed regulations by the Food and Drug Administration, restaurants and food vendors with 20 or more outlets are required to post calories on menus, menu boards – including drive-throughs – and food display tags, with additional nutrient information, including fat, saturated fat, carbohydrates, sodium, protein, and fiber available in writing upon request. Calorie postings also will apply to vending machines managed by companies that operate at least 20 machines.
According to the FDA, Section 4205 became effective the day the law was signed, which was March 23, 2010. However, some provisions depend on the FDA to issue rules before they can be required, which are yet to be released. Menu labeling provisions that the FDA considers in effect for chain restaurant companies include:
- disclosure of calories in each standard menu item on menus and menu boards
- availability of written nutrition information to consumers upon request
- inclusion of “prominent, clear and conspicuous” statements on menus and menu boards about the availability of the written nutrition information
- calorie information per serving or per food item for self-service items and food on display, on a sign adjacent to each food item.
Chain vending machine operators must providing a sign in close proximity to each article of food, or the selection button, that discloses the number of calories contained in the article, unless a prospective purchaser is able to examine the Nutrition Facts Panel before purchasing the article, or visible nutrition information is otherwise provided at the point of purchase.
Until FDA regulations are finalized the following provisions of Section 4205 are not yet required:
· Statements on menus or menu boards that put the calorie information in the context of a total daily caloric intake.
· Standards for determining and disclosing the nutrient content for standard menu items that come in different flavors, varieties or combinations, but which are listed as a single menu item.
State and local governments cannot directly or indirectly impose any nutrition labeling requirements on chain retail food establishments that are not “identical to” requirements imposed by section 4205.
Bob Harrison is a partner at Wilson, Elser, Moskoqitz, Edelman & Dicker. Find out more about the CRA Legal Center.