nkms webinar menu labeling.06.17.09

Because good counsel makes a world of difference

Perils and Compliance Strategies for Menu Labeling Laws

Webinar Presented by Christopher T. Vrountas, Esq. and

A. Adam Prizio, Esq.

Menu Labeling Legislation

• Menu labeling is required by law in– 2 States– 9 Counties or Cities

• Menu labeling legislation has been introduced in– 16 States and 1 County– 2 Bills before the U.S. Congress

Legislation by State

Source: Center for Science in the Public Interest

Recent History

• 2007 - New York City, King County, Washington, San Francisco.

• 2008 California statewide.

• 2008 Philadelphia – Strictest law.

• 2009 Massachusetts, Indiana, West Virginia.

• 2009 Maine, Oregon, Connecticut – Passed, but not yet signed into law.

Standard provisions to look for

• Menu Specials Exempt– On the menu fewer than 90 days per year

• Tolerances of information– Accurate to within 20%

• Presentation of information– Same size, same font, as either price or name

of item

Legislation - Federal

• Menu Education and Labeling (MEAL) Act (H.R. 2426)

• Labeling Education and Nutrition (LEAN) Act (S.B. 558, H.R. 1398)

• Uniform compliance standard

• May create a compliance “floor”

Menu Education and Labeling (MEAL) Act of 2009

• Restaurants having 20 or more locations under the same name.

• On the Menu– Calories– Saturated and Trans Fat– Carbohydrates– Sodium

• On Menu Board, Drive-Through Menu– Calories, and notice that other info is available.

• On Menu or in brochure– Information from HHS on healthy daily diet.

Labeling Education and Nutrition (LEAN) Act of 2009

• Restaurants having 20 or more locations under the same name.

• On the menu and menu board:– Calories

• Informational brochure:– Calories, calories from fat – total and saturated fat – Cholesterol– Sodium – Total and complex carbohydrates– Sugars– Dietary fiber– Total protein– Vitamins

Menu Labeling – Pros and Cons

• PROS– Allow consumers to

“budget” their calorie consumption

– Informed consumers may be better able to make purchasing decisions

– Intended to fight obesity

• CONS– Little evidence

showing that consumers do change their purchasing habits

– Compliance costs– Risk of lawsuit

Breaking News!

• June 10, 2009 – Compromise between MEAL and LEAN Acts

• Pre-empt state legislation (creating a uniform standard, not a “floor”)

• Protect restaurants from private litigation

• Compromise has not been written yet.

• Praised by both NRA and CSPI.

The Federal Compromise

• Is this Tobacco all over again?– Laws vary from state to state– Federal compliance will preempt all the

different state laws– Preemption is explicit, unlike tobacco.

Menu labeling and consumer protection claims

• False Advertising Claims– Paskett v. Brinker (Texas, 2009)– Jones v. Dine Equity (California, 2009)

• Alleged: Violations of Consumer Protection Laws– Unjust Enrichment: Taking payment for foods that

turned out to have more fat than advertised.– Deceptive Trade Practices: Failed to provide goods of

the quality advertised

Brinker and DineEquity: What Happened?

BRINKER

Name of Entrée Fat AdvertisedFat Plaintiff Alleges Entrée

Actually Contained

Guiltless Grilled Salmon 14 grams 35.5 grams

Guiltless Chicken Sandwich 8 grams 23.3 grams

DINEEQUITY

Tortilla Chicken Appetizer 13 grams 21.4 grams

Garlic Herb Chicken 6 grams 18 grams

Laboratory and Database Analyses

• Laboratory Analysis:– Uses actual entrée or food item as produced

• Database Analysis:– Based on recipe

• Portioning – Consistent portioning is key to avoiding these

sorts of Consumer Protection Lawsuits

Selected Reference Amounts Customarily Consumed (RACC)

3 oz. Meat, Poultry, Fish2 oz. Smoked or Salted Fish2 oz. Cheese

• 21 CFR 101.12• USDA Food Safety & Inspection Service• These reference amounts were developed

for retail labeling, not menu labeling.

So be Careful! Portion vs. Serving

• Calories per Portion– Calories in the entrée

• Calories per “Serving”– Calories in x oz.

• Don’t get these confused!

Copyright and Trademark Issues

• Can you copyright nutritional information?

• Incorporating nutrition information into branding and trademark– The 500 Burger– The 300 Quesadilla

SUMMARY

• Nutritional information is coming, if it’s not already here

• Compliance costs are not the only risk

• Consumer protection and false advertising

• Copyrights and trademarks

Food & Hospitality Group

The Food and Hospitality Practice Group at NKMS represents clients ranging from large national chains to small local businesses. It is a multi-disciplinary group comprised of highly experienced attorneys with focused expertise in the food and hospitality industry.

The Group provides skilled advocacy and counseling to help companies perform training, draft manuals and handbooks, develop policies, conduct investigations, and navigate through health department investigations. As lead trial counsel in civil rights and employment matters, NKMS offers representation for employers in large wage and hour claims, class action litigation, and other forms of labor disputes and enforcement actions.

NKMS also counsels on menu labeling regulations, liquor licensing, environmental matters, OSHA regulations, leasing matters, construction disputes, credit collection matters, covenants not to compete, and a variety of additional issues common to the food and hospitality industry.

Biographical Information

Christopher T. Vrountas is a partner at Nelson, Kinder, Mosseau & Saturley, P.C., a law firm with offices in Boston, Massachusetts; Portland, Maine, and Manchester, NH. Chris chairs the firm’s Employment Group and co-chairs the firm’s Food & Hospitality Group, and he spends much of his practice providing representation and advice to clients in the food service and hospitality industry. His clients include national and local restaurant chains, government contractors, software companies and staffing businesses which serve several industries segments.   

 Adam Prizio is an associate at Nelson, Kinder, Mosseau, & Saturley,

P.C. and a member of the firm’s Food & Hospitality Group. Adam is a graduate of Notre Dame Law School. Outside of the law, he has worked as a prep cook, line cook, restaurant supervisor, charcuterie purchaser, and cheese monger. He has written several articles on food policy for the firm and is a regular contributor to the firm’s “Legal Bites” blog on law and the restaurant business.