.floatimg-left-hort { float:left; } .floatimg-left-caption-hort { float:left; margin-bottom:10px; width:300px; margin-right:10px; clear:left;} .floatimg-left-vert { float:left; margin-top:10px; margin-right:15px; width:200px;} .floatimg-left-caption-vert { float:left; margin-right:10px; margin-bottom:10px; font-size: 12px; width:200px;} .floatimg-right-hort { float:right; margin-top:10px; margin-left:10px; margin-bottom:10px; width: 300px;} .floatimg-right-caption-hort { float:left; margin-right:10px; margin-bottom:10px; width: 300px; font-size: 12px; } .floatimg-right-vert { float:right; margin-top:10px; margin-left:10px; margin-bottom:10px; width: 200px;} .floatimg-right-caption-vert { float:left; margin-right:10px; margin-bottom:10px; width: 200px; font-size: 12px; } .floatimgright-sidebar { float:right; margin-top:10px; margin-left:10px; margin-bottom:10px; width: 200px; border-top-style: double; border-top-color: black; border-bottom-style: double; border-bottom-color: black;} .floatimgright-sidebar p { line-height: 115%; text-indent: 10px; } .floatimgright-sidebar h4 { font-variant:small-caps; } .pullquote { float:right; margin-top:10px; margin-left:10px; margin-bottom:10px; width: 150px; background: url(http://www.dmbusinessdaily.com/DAILY/editorial/extras/closequote.gif) no-repeat bottom right !important ; line-height: 150%; font-size: 125%; border-top: 1px solid; border-bottom: 1px solid;} .floatvidleft { float:left; margin-bottom:10px; width:325px; margin-right:10px; clear:left;} .floatvidright { float:right; margin-bottom:10px; width:325px; margin-right:10px; clear:left;}
Sure, your restaurant might slip in under the 20-location minimum to be subject to the calorie-display provision in the new health-care reform statute, but that doesn’t mean you shouldn’t be wary. Lawyers from Faegre & Benson’s food, agriculture and biofuels division say it might not be too long before either the law or social pressure forces even owners of stand-alone restaurants to comply.

The provision, signed into law on March 23 as part of the much-debated Patient Protection and Affordable Care Act (PPACA), requires restaurants with 20 or more locations to post calorie counts for their products on menus, menu boards and drive-through menus. New York state passed a similar law in 2008 and other states and cities have enacted similar regulations since. Final regulations for the federal law, which the National Restaurant Association supported, are mandated to be set forth within a year by the Food and Drug Administration.

“One of two things will happen: Either over time, they (small chains and individual restaurants) are going to be made to comply, or in the alternative, they are going to have consumer requirements or expectations that make them comply,” said Kevin Hein, a partner in Faegre & Benson’s Denver office who deals often with restaurant franchise and distribution law. “So while they are exempt now, they need to be concerned about the future.”

The federal law will be pre-emptive, but states will have the ability to enact even tougher laws, according to Jennifer Williams Zwagerman, an associate in Faegre & Benson’s Des Moines office. This means a state can’t make the law less restrictive, but could make it more restrictive by extending the law to restaurants with 15 locations – as New York has done – 10, five, or even one location.

“So there is a chance that states could come in and require it for fewer locations, like New York already has,” Zwagerman said. “However, I think a lot of what you will see done will be on a voluntary basis because customers are going to demand it.”

Hein said that if consumers regularly dine at a restaurant like Applebee’s, which would be required to display calorie counts, and they come to value having access to that information, they could be more likely to voice their displeasure or make a choice not to patronize a restaurant that doesn’t have calorie counts.

“A lot of those (restaurants) are, I think, going to feel compelled over time to start to provide it on a voluntary basis, just to be competitive,” Hein said. “I think most of the chains are going to say, ‘Look, it is something we can do, it is something we can calculate, we have been working on it for a while, consumers want it, so we are going to do it.'”

Beyond the issue of who will be required – either legally or socially – to follow the new law, the legislation opens up additional potential liability areas for restaurants, according to Faegre & Benson.

Zwagerman said that even before this law was passed, the firm had already been seeing a rise in obesity litigation from people claiming that a restaurant’s products made them overweight and consumer fraud litigation involving claims of inaccurate or misleading calorie counts.

Restaurants will need to make sure that their calorie counts are correct, because there are currently lawsuits pending that allege that calorie counts were misleading.

“You get a certain percent of give in (the calorie-count requirements), but there are lawsuits like that pending, and it will be curious to see how that is going to go forward,” Zwagerman said.

The concern with this legislation, Zwagerman said, is that everybody prepares food differently and chains sometimes have different ingredients coming into their various locations. Though litigation is still pending and the final regulations are expected to take into account variations in preparation and ingredients, restaurants should be concerned about the potential liability of having inaccurate calorie counts.

“It is something that I think those affected by (the law) should be aware of now,” Zwagerman said. “That is going to become an issue as soon as (the law) goes into effect, if not already now.”

Hein said the bigger challenge will be varying portion sizes, which could lead to differences in calorie counts. For example, McDonald’s Corp. has very precisely measured portions for its french fries, but operators of higher-end and casual-dining restaurants have been less rigid in how they portion out servings. An extra handful of fries could pile on a hefty handful of calories and drastically alter the calorie count on the menu.

Both Hein and Zwagerman are recommending that restaurants comply with the forthcoming law, but say that until the final regulations have been promulgated, they shouldn’t make any drastic changes. They also recommended waiting to do a menu revamp to avoid the cost of having to redo the menu again when the law goes into effect.

“I think you are going to see a wait-and-see approach from most restaurant chains, because it never makes sense economically to try to jump the gun on regulations and get it wrong,” Hein said.

Zwagerman said restaurants should consider doing an internal review of their practices to make sure they will be ready when the law goes into effect. She said to evaluate serving portion practices to find ways to be more consistent, and if you already have nutritional information, make sure it is accurate.