§81.50 Posting of calorie information.

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Definitions. When used in this section the following words and terms have the following

meanings:

(1) Combination meal means a standard menu item that consists of more than one food item. A

combination meal may be represented on the menu or menu board in narrative form, numerically,

or pictorially. Some combination meals may be a variable menu item where the components may

vary and the customer selects which components will be included in the meal. Some combination

meals may include a variable menu item as a part of the meal. A combination meal shall not mean

a special price offer to a customer to combine standard menu items for which calorie information

is already posted on the menu or menu board.

(2) Covered establishment means a food service establishment or similar retail food

establishment that is part of a chain with 15 or more locations nationally doing business under the

same name and offering for sale substantially the same menu items, or a food service

establishment or similar establishment that is not part of such a chain that voluntarily registers

with the United States Food and Drug Administration to be subject to the federal requirements for

nutrition labeling of standard menu items pursuant to 21 CFR 101.11(d), or successor regulation.

(3) Custom order means a food order prepared in a specific manner in response to an individual

customer’s request, which requires the covered establishment to deviate from its usual

preparation of a standard menu item.

(4) Daily special means a food item prepared and offered for sale on a particular day that is not

routinely listed on a menu or menu board, or other offer and that is promoted by the covered

establishment as a special item for that day.

(5) Food on display means restaurant-type food that is visible to the customer before the

customer makes a selection, so long as there is not an expectation of further preparation by the

customer before consumption.

(6) Food that is part of a customary market test means food that appears on a menu or menu

board for less than 90 consecutive days to test customer acceptance of the food.

(7) Menu or menu board means a printed list of the names or images of a food item or items

and the prices of such items, that is the primary writing of a covered establishment from which a

customer makes an order selection. Menus include breakfast, lunch, and dinner menus; dessert

menus; beverage menus; children’s menus; other specialty menus; electronic menus; and menus

on the internet, and may be in various forms, including booklets, pamphlets, single sheets of

paper, or electronic screens. Determining whether a writing is or is part of the primary writing of

a covered establishment depends on a number of factors, including whether the writing lists the

name of a standard menu item (or an image depicting the standard menu item) and the price of the

standard menu item, and whether the writing can be used by a customer to make an order

selection at the time the customer is viewing the writing. Menu boards include menu boards

inside the establishment as well as drive-through menu boards outside the establishment.

(8) Offering for sale substantially the same menu items means offering for sale a significant

proportion of menu items that use the same general recipe and are prepared in substantially the

same way with substantially the same food components.

(9) Similar retail food establishment means an establishment such as a convenience store,

grocery or supermarket that serves restaurant-type food.

(10) Restaurant-type food means food that is (i) usually eaten on the premises of or while

walking away from a food service establishment, or soon after arriving at another location, or (ii)

processed and prepared primarily in a similar retail establishment and offered for sale to

customers for either immediate or later consumption in or outside such establishment.

(11) Self-service food means restaurant-type food that is available at a salad bar, buffet line,

cafeteria or similar self-service facility that is served by customers themselves and includes selfservice beverages.

(12) Standard beverage fill means the fixed amount of a beverage that is less than the full

volume of the cup holding the beverage per cup size.

(13) Standard ice fill means the fixed amount of ice in a cup of a beverage per cup size.

(14) Standard menu item means any individual food item or combination of food items listed

or displayed on a menu or menu board that is sold by a covered establishment.

(15) Temporary menu item means a food item that appears on a menu or menu board for less

than a total of 60 consecutive and non-consecutive days during a calendar year

(16) Variable menu item means a standard menu item that comes in different flavors, varieties

or combinations and is listed as a single menu item.

Scope and applicability. This section applies to standard menu items offered for sale in

covered establishments and does not apply to condiments, daily specials, temporary menu items,

custom orders, foods that are part of a customary market test or temporary menu items, or to any

menu or menu board in a school that is for students in grades 12 or under.

Posting calorie information.

(1) Number of calories. Menus and menu boards must provide the number of calories

contained in each standard menu item. Information must be posted for each item as it is usually

prepared and offered for sale. For multiple-serving standard menu items, calorie information must

be posted either (i) for the standard menu item as listed, or (ii) for a discrete serving unit provided

that the total number of discrete serving units contained in such item is also posted.

(2) Position, size and color of calorie information. The number of calories must be listed

adjacent to the name or price of the associated standard menu item in a type size that is no smaller

than the smaller of either the name or price of the standard menu item. Calorie information must

appear in a color that is the same or at least as conspicuous as that used to list the name of the

associated standard menu item and against the same contrasting background, or a background at

least as contrasting, as that against which the name of the associated standard menu item is listed.

(3) “Calories” or “Cal” The term “Calories” or “Cal” must appear either adjacent to the

number of calories for each menu item or as a heading above a column listing the number of

calories for each standard menu item. Such term appearing adjacent to calorie information for a

standard menu item must meet the same font requirements as such calorie information. Such

term appearing as a heading above a column must be listed in a type size that is no smaller than

the smallest type size used to list the name or price of any menu item on that menu or menu board

and in the same color, or as conspicuous a color, and against the same contrasting background, or

a background at least as contrasting, as that used for that name or price.

(4) Basis for calorie information. Posted calorie values must have a reasonable basis, which

may be derived from the use of nutrient databases, laboratory testing, or other reliable methods

of analysis, and be rounded to the nearest ten (10) calories for calorie content values above 50

calories and to the nearest five (5) calories for calorie values 50 calories and below. Zero calories

may be declared for any item containing fewer than five (5) calories.

(5) Self-service food and food on display. Calorie information must be declared for selfservice food and food on display. The calorie information must be declared either (i) for each

food item or, (ii) if the food item is not offered for sale in a discrete unit, per serving measured by

a standard scoop or cup size. The declaration must identify the serving or discrete unit used to

determine the calorie content. The calorie information must be posted either on a sign adjacent to

and clearly associated with the corresponding food, or on a sign attached to a sneeze guard above

the food item. The sign must identify the food item for which it is declaring calorie information

if it is not otherwise clear to which food item the declaration belongs, or, if calorie information is

being declared for more than one food item, on a sign or placard located where the customer can

view both the food items listed on the sign and their calorie declarations. For self-service

beverages, calorie declarations must be accompanied by the total number of fluid ounces in the

cup indicated by the term “fluid ounces” and, if applicable, a description of cup size, e.g., small,

medium, etc. as applicable.

(6) Different sizes, flavors and varieties; toppings; combinations.

(A) Different sizes, flavors and varieties. For standard menu items offered in different

flavors and varieties, calories must be posted for each listed size, flavor or variety. If all of the

listed sizes, flavors or varieties of a standard menu item have the same calorie amount, menus and

menu boards must list a single calorie declaration for the standard menu item. If there are only

two calorie amounts for all sizes, flavors and varieties of a standard menu item, both calorie

amounts must be posted on menus and menu boards for the menu item with a slash between the

two calorie amounts. For sizes, flavors and varieties of a standard menu item having more than

two calorie amounts, the range of calorie amounts must be posted on menus and menu boards for

each such size, flavor and variety.

(B) Toppings. When toppings can be added to a standard menu item and such toppings are

listed on menus and menu boards, the calories for the standard menu item must be listed as well

as the calories for each such topping.

a combination meal, the calories must be declared for each option with a slash between the

calorie declarations. If three or more options for standard menu items in a combination meal are

listed, the range of calorie content values showing the minimum to maximum numbers of calories

for all combinations of that standard menu item shall be listed on menus and menu boards. If

there is only one possible total calorie amount for the combination, then that total must be listed

on menus and menu boards.

(7) Beverages that are not self-service. Calories declared for non-self-service beverages must

be based on the full-volume of the cup or other container served without ice. If the establishment

usually dispenses and offers for sale a standard beverage fill or a standard ice fill, the calories

declared must be based on such standard beverage fill or standard ice fill.

Required nutritional information statements.

(1) General requirement. Menu boards and each page of a menu for a covered establishment

must prominently state in a clear and conspicuous manner: “2,000 calories a day is used for

general nutrition advice, but calorie needs vary.”

(2) Children’s menus. Instead of the requirement of subparagraph 1 of this paragraph, menus

and menu boards, and pages of menus, targeted for children may state either: “1,200 to 1,400

calories a day is used for general nutrition advice for children ages 4 to 8, but calorie needs

vary.”; or “1,200 to 1,400 calories a day is used for general nutrition advice for children ages 4 to

8 years and 1,400 to 2,000 calories a day for children ages 9 to 13 years, but calorie needs vary."

Additional written nutritional information. Covered establishments must have written

nutritional information on the premises in the manner provided for in 21 CFR 101.11(b)(2)(ii), or

successor regulation. The information must be made available to any customer who requests it.

All menus and menu boards must prominently state in a clear and conspicuous manner:

“Additional nutritional information available upon request.”

Enforcement. In addition to the Department, the Department of Consumer Affairs may

enforce the requirements of this section.

Severability. If any provision of this section, or its application to any person or circumstance,

is held invalid by any court of competent jurisdiction, the remaining provisions or the application

of the section to other persons or circumstances shall not be affected.

Effective date. This section takes effect December 1, 2016.