We use cookies to improve your experience and optimize user-friendliness. Read our cookie policy for more information on the cookies we use and how to delete or block them. To continue browsing our site, please click accept.

FDA Guidelines Provide Clarity for Restaurants, Consumers on Affordable Care Act (AFA)

FDA Guidelines Provide Clarity for Restaurants, Consumers on Affordable Care Act (AFA)

The Food and Drug Administration (FDA) announced new rules requiring restaurants and other covered establishments to post calorie counts of restaurant type food on their menus.  The revised FDA guidelines, which supersede similar state and municipality laws, go into effect on December 1, 2014, for restaurants and entities with 20 or more national establishments.  Restaurants and other similar entities have one year to comply; vending machines have two years to do so. This comes four years after Section 4205 of the Affordable Care Act (AFA), also known as Obamacare, rolled out its initial guidance on calorie count postings for food establishments.
The general rule of thumb is that if the food is expected to be eaten soon after its purchase, it must come with a calorie count. Here are some examples of when restaurants and items would or would not be required to post calorie information:

  • Quick service restaurants
  • Pizza delivery or take out
  • Prepared food from supermarkets, convenience stores, and coffee shops
  • Deli meats / cheeses
  • Deli salads not intended solely for an individual
  • Seasonal items (offered less than 60 days per year).


Currently, Section 331 of the Federal Food, Drug, and Cosmetic Act (FD&C) regulates the misbranding of food labeling and is punishable by Section 333, which carries a fine not to accede $1,000 and imprisonment of no more than one year, or both. The FDA is currently re-establishing penalties for non-compliance under various sections of the Federal Food, Drug, and Cosmetic Act (FD&C Act), which was amended by the ACA, for this recent clarification. Although organizations have until December 1, 2015 to comply, there is no official timetable set for the penalties.

The ultimate goal of the new guidelines and of the AFA is to combat the United States’ obesity problem, one of the worst in the world. About two-thirds of the adult population and one-third of children in the U.S. are obese. The new rules are in place because they are an important first step for Americans to notice that what they’re regularly eating is harmful to their health.

Consumer Behavior

FDA Commissioner Dr. Margaret Hamburg says that consumers have yearned for this information at their fingertips.  “Americans eat and drink about one-third of their calories away from home, and people today expect clear information about the products they consume,” Hamburg said in a statement. The National Restaurant Association said that similar laws have been in place in U.S. cities for years and now we have a national standard that “anyone dining out can have a clear, easy-to-use nutrition information… presented in the same way, no matter what part of the country.”

Some restaurants say the guideline isn’t a factor in the profitability of a restaurant. Back in 2011, Todd Stallings, owner of several Five Guys restaurants in Montgomery, VA where they were required to post calorie counts, said that their sales weren’t affected by the menu requirements and “when people come to Five Guys, they know we are not cooking their french fries in water.”

This goes back to the consumer behavior aspect – consumers are generally going to be affected by the shocking news. They already know that the occasional cheesesteak will set them back 800 calories. However, they’d become appalled when their everyday muffin clocks in at 500 calories.

Overall, consumers are the big winners through all of this. They have more information readily available to them and restaurants have begun rolling out more low-calorie options. It’s going to take some time to witness the impact from these new guidelines. Until then, it’s time for us Americans to step up and make better nutritional choices.

Need More Information?

If you need more information on the topic discussed, please contact your local Withum advisory by filling out the form below.

The information contained herein is not necessarily all inclusive, does not constitute legal or any other advice, and should not be relied upon without first consulting with appropriate qualified professionals.

How Can We Help?

Previous Post
Next Post
Article Sidebar Logo Stay Informed with Withum Subscribe


Get news updates and event information from Withum