Understanding the Restaurant-Specific Impact of Ending the COVID-19 Emergency Status

The White House has indicated that it will end the COVID-19 health emergency on May 11, 2023. That will have numerous impacts on businesses of all types, including restaurants. Discover what this means specifically for menu labeling requirements and how a business lawyer can help below.

FDA Requirements for Menu Labeling

The FDA has required menu labeling from certain restaurants since 2014. The requirement is part of the Affordable Care Act’s Prevention of Chronic Disease and Improving Public Health section.

Generally, a restaurant or restaurant group must comply with this rule if they meet the following conditions:

  • They offer standard menu items,
  • They are a restaurant or retail food establishment that is “similar” to a restaurant, and
  • They are part of a chain having
  • 20 or more locations operating under the same name

Some examples of restaurants falling under this classification include McDonald’s, Chili’s, and Starbucks. Regional and local chains can also fall under this designation. A sandwich shop chain with 25 locations in a single state, for example, still counts.

Entities meeting these designations must provide the following information on menus or in easy-to-access formats for ordering customers:

  • The number of calories in every standard menu item (specials that are offered occasionally wouldn’t count)
  • A statement that daily recommendations are based on an average caloric intake of 2,000 calories per day
  • The fact that detailed nutritional information about menu items is available upon request

Why Did the FDA Relax These Requirements During the COVID-19 Pandemic?

FDA flexibility regarding menu labeling was announced in April 2020. The FDA specifically said in temporary guidance about menu labeling that as long as the state of emergency was in effect for the COVID-19 pandemic, it would not enforce the menu labeling requirements. Specifically, it recommended that restaurants required to engage in menu labeling continue to do so if at all possible, but that the FDA would not act on instances where chains failed to do so.

The reason that the FDA extended this flexibility is because it recognized that restaurants may struggle to meet menu-labeling requirements while continuing to provide service and food to customers via new, disruptive models during the pandemic.

For example, early on in the pandemic, lockdowns kept restaurants from providing dine-in service. Many locations worked quickly to create take-out and online ordering options, including curbside service, to accommodate people while also adhering to social distancing requirements. The FDA said it was aware of the challenges in rapidly implementing these types of processes. It knew that the burden of also integrating nutritional information might negatively impact the agility of chains in adapting to quickly changing landscapes.

Another reason the FDA backed off menu labeling requirements was related to supply chain disruptions. Restaurants that were dealing with supply chain issues couldn’t always provide the exact same food. Menu items were tweaked, ingredients were substituted, and suppliers were swapped. For instance, a restaurant that included chicken tenders on its menu might get the tenders from one supplier one week and another supplier the next, depending on availability. This constant need to think outside the box for restaurant logistics during the pandemic made accurate menu labeling potentially impossible for many chains.

The End of the COVID-19 Public Health Emergency

The White House indicated in February 2023 that it would end the COVID-19 public health emergency status on May 11, 2023. When the public health emergency status ends, many of the temporary provisions associated with it will also end or phase out. That includes the FDA’s temporary flexible stance on menu-labeling requirements.

What does this mean for restaurants and similar businesses in Georgia? Primarily, it means affected chains with 20 or more sites should do some work to ensure they are compliant with menu-labeling requirements. Even if you think your chain has remained compliant throughout the pandemic, it may be a good idea to double check that in-house, online, and mobile menus all contain the necessary calorie counts and nutritional statements.

It’s not clear whether the requirements will begin again on May 11 or be phased in at a later date. Since we know they will come back at some future point, restaurants might as well plan to be compliant by May 11. Starting now can help you avoid a rush to compliance, which can lead to oversights and mistakes. The Georgia Restaurant Association advises that impacted restaurant owners and managers begin taking measures to comply with the requirements now.

How Can InPrime Legal Help?

We specialize in helping restaurants scale fast and with confidence by aligning our legal strategy with their business goals. This includes structuring the restaurant operation to maximize asset protection, mitigating liability for employee grievances, and negotiating key tenant protections into commercial leases, like critical limitations on the personal guarantees, kick-out clauses, and other key terms.

Our clients can rely on us to stay on top of pertinent laws and provide guidance about complying with those laws to avoid legal troubles and potential fines. InPrime Legal offers a number of service options allowing businesses easy access to legal advice when they need it through included email and video consultations.

To discover more about how we can help your restaurant chain align business and legal strategies, protect your interests, and scale your business, contact us today.