April 2012
Creating Successful Healthy
Restaurant Policies
Understanding the Laws Regulating Restaurants
Concerned about the obesity epidemic and the related health implications
and costs, communities around the country are looking at ways to encourage
healthier eating. More than two-thirds of adults and nearly a third of
children are overweight or obese.
1
On average, Americans eat as many as a
third of their meals in restaurants.
2
Consequently, communities are looking
for strategies to improve the health of the food oered in restaurants.
A growing number of communities have adopted or are considering
policies to increase the availability of healthier food at restaurants. Some
cities have selected a legislative or regulatory approach. For example, prior
to the adoption of the Aordable Care Act – which mandates that chain
restaurants provide nutrition information to consumers – New York City,
San Francisco, and Philadelphia adopted laws requiring certain restaurants
to disclose calorie counts on menus. Other cities have used their zoning
power to limit the availability of fast food. Los Angeles recently adopted a
zoning law that restricts the density of stand-alone fast food restaurants in an
area within the city. Concord, Mass., and Calistoga, Calif., have banned fast
food restaurants entirely.
This publication gives a brief
description of the federal, state,
and types of local laws that
regulate restaurants. It also
provides examples of policies
that communities may adopt,
and suggests recommendations
for drafting policies that
comply with the regulatory
framework.
changelabsolutions.org
I
nplan.org
Creating Successful Healthy Restaurant Policies
2
changelabsolutions.org
I
nplan.org
Other communities have focused more on programmatic eorts. Somerville, Mass., for example,
has implemented a “healthy restaurant program,” oering incentives to restaurants that agree to
provide consumers with a certain number of entrées that meet particular health standards. In
exchange for oering consumers the healthier meals, restaurants receive benets, such as training
and free publicity.
Regardless of the approach, community members need to understand the regulatory framework
that governs restaurants so their approach conforms to the law. Restaurants are regulated by
federal, state, and local laws. Understanding this framework can ensure that communities adopt
strategies that comport with the law and therefore have a stronger likelihood of success.
Federal Law
Food, Drug, and Cosmetic Act
e Food, Drug, and Cosmetic Act (FDCA), enacted in 1938, generally prohibits the
misbranding or mislabeling of food. In 1990, Congress adopted the Nutrition Labeling
and Education Act (NLEA), which amended the FDCA by clarifying and strengthening
the Food and Drug Administration’s (FDA) legal authority to: (1) require general nutrition
labeling on foods, specifying what and how nutritional information must be disclosed, and
(2) establish the circumstances under which particular nutrient and health claims may be made
about food.
3
Most consumers are familiar with the general nutrition labeling requirements
from the Nutrition Facts charts required on most prepackaged food. As described below,
some of the FDCA’s provisions apply to restaurants.
Nutrition Labeling: Federal Calorie Disclosure Law
Until recently, the FDCA’s general nutrition labeling provisions did not apply to restaurants.
e Aordable Care Act amended the FDCA to require new nutrition disclosure
requirements for certain restaurants and vending machines.
4
e law applies to chain
restaurants or similar retail food establishments that have at least 20 locations doing business
under the same name (regardless of the type of ownership of the locations) and oering
substantially the same menu items for sale.
5
ese restaurants must:
• Listthenumberofcaloriesforeverystandardmenuitemandsuggesttotaldailycalories
onamenu,menuboard,ordrive-throughmenuboard;
• Listthecaloriesperservingnexttoeachitem,ifthefoodisprovidedatasaladbar,
buffet,cafeteria,orsimilarself-servicefacility(includingself-servicebeverages);and
• Makeavailable,throughabrochure,poster,orothermeans,additionalservingsize
information,including:thetotalnumberofcalories,caloriesderivedfromfat,the
amountoftotalfat,saturatedfat,cholesterol,sodium,totalcarbohydrates,complex
carbohydrates,sugars,dietaryber,totalprotein,andanyadditionalnutrientinformation
identiedbytheSecretaryofHealthandHumanServicesasnecessaryforconsumersto
makehealthychoices.
6
On April 6, 2011, the FDA solicited public comments for its proposed rule implementing the
new law.
7
On May 24, it issued some technical corrections to the proposed rule.
8
e FDA is
expected to issue the nal rule in 2012.
e law expressly prohibits or preempts state and local governments from imposing
any requirements for the nutrition labeling of food that are not identical to the FDCA’s
requirements for the chain restaurants covered by the Act.
9
us, states and cities may impose
laws that are identical to the federal law, but may not require chain restaurants with at least 20
outlets to post any nutritional information on their menus that diers from what is required
by the FDCA. e law does not prohibit state and local governments from imposing nutrition
labeling requirements on restaurants that are not covered by the Act, but it allows any such
Creating Successful Healthy Restaurant Policies
3
changelabsolutions.org
I
nplan.org
entity to formally opt in to these requirements (and therefore, opt out of any state or local
law).
10
e FDA has issued guidance detailing the procedure for voluntary registration.
11
e FDCA contains enforcement provisions to ensure that food is not mislabeled. Generally,
the FDA may enjoin sales of the food or pursue civil or criminal penalties.
12
Federal law allows
states to take action against mislabeled food in their jurisdiction, but they must give at least
30 days notice to the FDA before proceeding.
13
ese enforcement mechanisms existed prior
to the adoption of the menu-labeling provisions and were not designed specically to address
menu labeling.
Nutrient-Content and Health Claims
e FDCA also regulates labeling on foods that makes particular nutrient or health claims.
14
Any restaurant that makes nutrient-content or health claims about food on its menus, posters,
or signs must comply with the requirements spelled out in the FDCA and its regulations.
15
ese requirements, which existed prior to the recent reform, apply to all restaurants (members
of a chain or not).
Nutrient-Content Claim
A nutrient-content claim is a labeling claim that expressly or by implication “characterizes the
level of any nutrient.”
16
(e mandatory nutrition labeling disclosures themselves, required
of chain restaurants, are not considered nutrient-content claims.
17
) e FDA regulations
specify what terms may be used when making a nutrient-content claim and what nutrient
content must be present in the food in order to use the term.
18
us, when a restaurant makes
a nutrient-content claim on its menu, such as that an item is “low-fat,” it must comply with the
FDCA’s nutrient-content claims requirements for restaurants.
19
Upon request, the restaurant
must disclose the nutrition information that is the basis for the claim – for example, that “low-
fat” means “this meal contains 10 grams of fat.”
20
Restaurants may determine the nutrient levels of the food they serve by using nutrient
databases, cookbooks, analyses, or other reasonable bases that provide assurance that the
food meets the nutritional requirements for the claim.
21
Currently, the FDA does not dictate
standardized type, size, or placement requirements for presenting information that supports
a nutrient claim, but states, “[l]abeling that is easily accessible to consumers, that contains all
required nutrition information, and that is presented clearly and legibly” would conform to its
requirements. When the FDA issues the nal regulations implementing the menu-labeling
provisions, it could make additional changes to these regulations.
Health Claim
A health claim is a claim on a food label that expressly or by implication, including third-party
references, written statements, or symbols, “characterizes the relationship of any substance
. . . to a disease or a health-related condition.”
22
(e FDCA uses the term “substance” to
mean a specic food or component of food.) For example, the FDA considers using the term
“heart-healthy” next to an entrée on a menu to be a health claim. It contains the two required
elements: (1) a reference to a nutrient or substance – the nutrients in the entrée, and (2) a
reference to a disease or health-related condition – heart disease.
23
Similarly, the use of a heart
symbol constitutes an implied health claim.
24
e FDCA strictly regulates when a substance may be eligible for a health claim, what
nutrient content must be present in the food to make the claim, and what nutrient information
a restaurant must disclose in reference to the health claim.
25
A restaurant may not make a
health claim for foods that exceed specied levels of total fat, saturated fat, cholesterol, or
sodium.
26
e FDA authorizes a health claim only when it determines, based on the totality
of publicly available scientic evidence, that there is signicant scientic agreement among
qualied experts that the claim is supported by evidence.
27
Creating Successful Healthy Restaurant Policies
4
changelabsolutions.org
I
nplan.org
State and Local Laws
State and local governments also regulate restaurants. e extent to which a city or county can pass
laws regulating restaurants depends on the extent of the police power – the power of the government
to regulate private conduct to protect and further the public’s health, safety or general welfare –
granted under its state constitution or statutes. Because of variations in state law, some the following
types of laws may be passed at the state level, while others may be passed at the local level.
State Retail Food Codes
All states have laws setting health and safety standards for restaurants. Forty-nine states
have laws based on the FDA’s model Food Code versions from 1993 or later.
28
Updated most
recently in 2009, the model Food Code uses the latest scientic evidence to set forth sanitation
and food-handling requirements for restaurants, retail food stores, vending operations, and
food service operations in institutions such as schools, hospitals, nursing homes and child
care centers.
29
Briey, the model code establishes denitions; sets sanitation standards for
personnel, food operations, and equipment and facilities; and provides for food establishment
plan review, permit issuance, inspection, and permit suspension.
30
State legislatures adopt the model Food Code either “as is,” or with changes. Although the
food codes are state law, they are frequently implemented at the local or regional level through
county health, agriculture, or similar agencies. Restaurants apply to their local county health
department or other designated agency for an operating permit. e local environmental
health ocer (or comparable employee) is responsible for inspecting the restaurant, ensuring
that employees have received proper food safety training, monitoring compliance, and
enforcing the law.
State Food, Drug and Cosmetic Acts
Some states have adopted their own food, drug, and cosmetic acts. California, for example,
adopted the Sherman Food, Drug, and Cosmetic Act, with provisions that are identical to
the FDCA.
31
Under the law, California can enforce regulations related to mislabeled or
misbranded food within its borders.
32
In addition, the California department of health can
authorize local county health departments to enforce the regulations relating to retail food
establishments, including restaurants.
33
Zoning Laws
Cities and counties use zoning and other land use measures to regulate growth and
development in an orderly manner. Zoning divides an area into districts and determines how
the land in each district may be used. State laws give most cities and counties the power to
enact zoning laws. Many use that power to regulate where restaurants may locate.
Other Operating Licenses or Permits
Most communities require restaurants to obtain additional permits or licenses to operate.
In some communities, state law determines the type of permits or licenses; in others, a mix
of state and local law does so. For example, a restaurant may need a business license, a re
inspection clearance or permit, a building permit, a particular type of waste permit, or other
type of license.
Other Local Laws Affecting Restaurants
State and local laws also may regulate other health and environmental aspects of restaurants.
Many states ban smoking in restaurants.
34
In states that do not ban smoking, cities that
are empowered to do so have banned smoking.
35
California restricts restaurant use of trans
fats, as does New York City.
36
Some communities have other laws regulating restaurant
environments. For example, Honolulu requires restaurants to recycle or compost their waste,
37
and San Francisco prohibits restaurants from serving take-out food in containers made of
polystyrene foam.
38
Creating Successful Healthy Restaurant Policies
5
changelabsolutions.org
I
nplan.org
Finally, some communities have laws encouraging restaurants to serve healthier food. NPLAN
has a model ordinance requiring restaurants that give away toys with children’s meals to meet
certain nutrition standards. NPLAN’s Model Ordinance for Healthier Toy Giveaway Meals,
is available at:
www.changelabsolutions.org/publications/healthier-toy-giveaway-meals.
Santa Clara County, Calif., enacted an ordinance based on NPLAN’s model.
39
Watsonville,
Calif., requires new restaurants to contain certain healthy food options in order to obtain a
building permit.
40
Policy Recommendations
Establish a Healthy Restaurant Recognition Program
A number of states and communities have adopted or are considering adopting restaurant recognition
programs to encourage restaurants to oer healthier fare to consumers. Restaurants choose to
participate in the program. ese programs generally require restaurants to oer a certain number of
menu items that meet established nutritional standards. e healthy items are identied as such on
the menu. In exchange, these programs oer restaurants free publicity, nutrition training, nutrition
analysis of menu items, and other benets. NPLAN’s toolkit to help communities establish a healthy
restaurant program, Putting Health on the Menu: A Toolkit for Creating Healthy Restaurant Programs, is
available at:
www.changelabsolutions.org/publications/healthy-menus.
Restaurant recognition programs are unlikely to be considered preempted by the federal law. As
described above, the federal law prohibits states and political subdivisions of states from establishing
“any requirement” for nutrition labeling of food for restaurants of chain of 20 or more outlets.
41
Restaurant recognition programs are voluntary programs; restaurants choose whether to participate
in the programs. Once they choose to participate, they may be contractually bound to follow
the program requirements – which may include labeling on the menu to inform customers that
designated entrées meet certain nutrition standards. But, because the programs are not mandatory,
they do not impose a requirement that is likely to fall within the federal law’s preemption clause.
Because all restaurants, however, are subject to the nutrient and health claim requirements of the
FDCA, it is important that health departments design their restaurant recognition programs to be
consistent with the law’s requirements. While the FDA has issued guidance on the application of
the FDCA to restaurants, it decides whether a statement is a nutrient or health claim on a case-by-
case basis.
42
us, there is no guarantee that a community’s restaurant program would be exempt
from FDA scrutiny. As a result, when implementing a healthy restaurant recognition program, the
safest course is to assume that any identication of healthy entrées on the menu would be considered
at least a nutrient claim and possibly a health claim as well. Accordingly, the programs should:
• Useestablishednutritionstandards,suchasthosecontainedintheU.S.DietaryGuidelinesfor
Americans,todeterminewhatqualiesasahealthymenuitem,sidedish,orbeverage;
43
• Whenusingadietaryguidelinebasedonspeciclevelsforintakeofanutrientbasedontotal
dailyconsumption,dividethetotalbyfour(threemealsandasnackperday)todeterminethe
appropriatevalueforanindividualmeal;
44
• Usesymbolssuchasastarorcheck,notaheart,toidentifythehealthymenuitems;
45
• Ensurethatpropernutritionanalysis—usingnutrientdatabases,cookbooks,analyses,orother
reasonablemeans—supportanymenuitemidentiedasconsistentwiththeprogram’snutrition
standards;
46
• Ensurethatrestaurantsmakenutritioninformationrelatedtotheidentiedmenuitems
availableinwritingtoconsumers;
47
• EnsurethatnoidentiedentreesexceedtheFDA-speciedlevelsoftotalfat,saturatedfat,
cholesterol,orsodiumpermittedinhealthclaims.
48
Creating Successful Healthy Restaurant Policies
6
changelabsolutions.org
I
nplan.org
Enact a State or Local Menu Labeling Law to Allow Local Enforcement
Under the new federal law, states and localities empowered to do so under state law may pass laws
identical to the federal law. States and communities that do so may monitor and enforce the law
within their jurisdictions. As a practical matter, states and localities are in a better position than
the FDA to monitor and enforce menu-labeling in their communities. Vermont has enacted a
menu-labeling law that is identical to the federal law for that purpose.
49
Similarly, King County,
Wash., recently amended its pre-existing menu-labeling law to be identical to the federal law so
that it may monitor its local restaurants.
50
States and localities also may pass menu-labeling laws to address those restaurants not subject to
the federal menu-labeling law. But, as noted above, restaurants subject to a state or local law but
not to the federal law may opt to comply with either the federal or non-federal law.
Establish Fast Food Zoning Restrictions
Communities also may use their zoning power to regulate the types and density of certain types
of restaurants. Local governments have considerable discretion when enacting zoning regulations,
including those restricting the location, density, or number of fast food restaurants. For example,
Concord, Mass., and Carmel, Calif., ban all fast food restaurants.
51
Recently, the Los Angeles
City Council adopted a ban on new freestanding fast food restaurants in the South Central part
of Los Angeles.
52
Detroit prohibits fast food restaurants within 500 feet of schools.
53
NPLAN has a
model ordinance limiting fast food restaurants near schools. NPLAN’s Model Healthy Food Zone Ordinance:
Creating a Healthy Food Zone Around Schools by Regulating the Location of Fast Food Restaurants, is available
at: www.changelabsolutions.org/publications/model-ord-healthy-food-zone.
Governments enact zoning laws under their police power.
54
Provided there is a reasonable basis for
dierent zoning treatment of similar lands, land uses, or land users, courts will generally uphold
the regulations, even in the absence of evidence that the dierent zoning treatment will have its
intended eect.
55
When drafting zoning restrictions, communities should ensure that they have
articulated a rational basis – protecting the health, safety, or general welfare of their citizens – to
justify the dierence in treatment.
Conclusion
Americans love to dine out and eat on average a third of their meals in restaurants. But deciding
to eat a meal out shouldn’t mean having to eat an unhealthy meal. Innovative cities are adopting
polices to make healthy options more readily available. With a clear understanding of the laws
regulating restaurants, communities can be sure to adopt strategies that comport with the law and
have a stronger likelihood of success.
The National Policy & Legal Analysis Network to Prevent Childhood Obesity (NPLAN) is a project of ChangeLab Solutions.
ChangeLab Solutions is a nonprofit organization that provides legal information on matters relating to public health. The legal
information in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a
lawyer in their state.
Support for this document was provided by a grant from the Robert Wood Johnson Foundation.
© 2014 ChangeLab Solutions
changelabsolutions.org
7
Creating Successful Healthy Restaurant Policies
changelabsolutions.org
I
nplan.org
1
LarsonN,StoryMandNelsonMC.Restaurant Realities: Inequalities in Access
to Healthy Restaurant Choices.HealthyEatingResearch,July2008.Available
at:www.healthyeatingresearch.org/images/stories/her_research_briefs/
her%20restaurant%20realities_7-2008.pdf.
2
StuartH,BilsardN,andJolliffeD.Let’s Eat Out: Americans Weigh Taste,
Convenience, and Nutrition. USDepartmentofAgricultureEconomic
ResearchService,Oct.2006.Availableat:www.ers.usda.gov/publications/
eib19/eib19.pdf.
3
New York State Restaurant Assoc. v. New York City Board of Health,556F.3d
114,118,(2ndCir.2009).
4
21U.S.C.§343(q)(5)(H)(2010).Thelawalsoappliestovendingmachines
operatedbyapersonorentitythatownsoroperates20ormorevending
machines.21U.S.C.A.§343(q)(5)(H)(viii)(2010).Vendingmachines
willrequire“asignincloseproximitytoeacharticleoffoodortheselection
buttonthatincludesaclearandconspicuousstatementdisclosingthenumber
ofcaloriescontainedinthearticle[offood],”unlessthevendingmachine
allowsaprospectivepurchasertoexaminetheNutritionFactsPanelbefore
purchasingthefooditemorotherwiseprovidesvisiblenutritioninformation
atthepointofpurchase.
5
21U.S.C.§343(q)(5)(H)(i)(2010).
6
21U.S.C.§343(q)(5)(H)(ii)(2010).
7
FoodLabeling;NutritionLabelingofStandardMenuItemsinRestaurants
andSimilarRetailFoodEstablishments,76Fed.Reg.66,19192(April6,
2011)(tobecodiedat21C.F.Rpts.11and101).
8
FoodLabeling;NutritionLabelingofStandardMenuItemsinRestaurants
ansSimilarRetailFoodEstablishments;Correction.76Fed.Reg.100,30050
(May24,2011)(tobecodiedat21C.F.R.pts.11and101).
9
21U.S.C.§343-1(a)(4)(2010).
10
21U.S.C.§343-1(a)(4)(2010).
11
VoluntaryRegistrationbyAuthorizedOfcialsofNon-CoveredRetailFood
EstablishmentsandVendingMachineOperatorsElectingToBeSubjectto
theMenuandVendingMachineLabelingRequirementsEstablishedbythe
PatientProtectionandAffordableCareActof2010,75Fed.Reg.43182-04
(July23,2010).
12
21U.S.C.§§332,333(2011).
13
21U.S.C.§337(2011);21C.F.R.§100.2(2011).
14
21U.S.C.§343(r)(1)(2010).
15
See21C.F.R.pts.100and101(2011).
16
21U.S.C.§343(r)(1)(A)(2010);emphasisadded.
17
21C.F.R.§101.13(c)(2011).
18
GuidanceforIndustry:ALabelingGuideforRestaurantsandOther
RetailEstablishmentsSellingAway-From-HomeGoods.FoodandDrug
Administration,April2008,AppendixB.Availableat:www.fda.gov/
food/guidancecomplianceregulatoryinformation/guidancedocuments/
foodlabelingnutrition/ucm053455.htm.(hereafter“FDAFoodLabeling
Guide”).
19
21C.F.R.§101.10(2011).
20
FDAFoodLabelingGuide,questionno.9,supranote18.
21
Id.
22
21U.S.C.§343(r)(1)(B)(2010);21CFR§101.14(a)(1).
23
FDAFoodLabelingGuide,questionno.40,supranote18.
24
FDAFoodLabelingGuide,questionsno.40,41,supranote18.
25
21C.F.R.§101.14(b)(2011).
26
21C.F.R.§101.14(a)(4)(2011).
27
21C.F.R.§101.14(c)(2011).
28
FoodandDrugAdministration.Real Progress in Food Code
Adoptions.Sept.30,2010.Availableat:www.fda.gov/Food/
FoodSafety/Product-SpecicInformation/InfantFormula/
ConsumerInformationAboutInfantFormula/ucm108156.htm.
NorthCarolinahasadoptedalawbaseduponthe1976ModelFoodservice
Code.TheDistrictofColumbia,PuertoRico,andtheVirginIslandshave
alsoadoptedversionsoftheFoodCode.Ofthe345federallyrecognized
tribeswithfoodserviceoperations,asofFebruary,2010,only63have
adoptedatribalfoodcode,54ofwhicharebasedontheFDAModelFood
Code.
29
FoodandDrugAdministrationModelFoodCode,Preface§3(2009).
30
FoodandDrugAdminstrationModelFoodCode§1-103.10(2009).
31
See, e.g.California’sShermanFood,Drug,andCosmeticLaw,Cal.Health&
SafetyCode§109875et seq.
32
In re Farm Raised Salmon Cases,42Cal.4th1077,1083(2009)[holdingthat
thestatecanenforcelabelingrulesthatareidenticaltotheFDCA].
33
Cal.Health&SafetyCode§111020(West2011).
34
NationalCouncilofStateLegislatures.Enacted Indoor Smoke-free Laws.Nov.
2010.Availableat:www.ncsl.org/default.aspx?tabid=19911.
35
Columbia,SouthCarolina,alongwithmanyothercitiesandstates,ban
smokinginrestaurants.ColumbiaCodeofOrdin.Ch.8,Div.5,§§8-215
8-221(2009).
36
Cal.Health&SafetyCode§114377(West2009);NewYorkCityHealth
Code§81.08(2006).
37
§9-3.5R.O.H.(1997).
38
S.F.Envir.Codech.16(2006).
39
SantaClara,Cal.CodeofOrdinances,DivisionA18,ChapterXXII,§§
A18-350-355.
40
Watsonville,Cal.MunicipalCode,Title14,ch.29.
41
21U.S.C.A.§343-1(a)(4)(1997).
42
FDAFoodLabelingGuide,questionno.39,supranote18.
43
FDAFoodLabelingGuide,questionsno.50-57,supranote18.
44
FDAFoodLabelingGuide,questionno.52,supranote18.
45
FDAFoodLabelingGuide,questionno.55,supranote18.
46
FDAFoodLabelingGuide,questionno.66,supranote18.
47
FDAFoodLabelingGuide,questionno.7,supranote18.
48
FDAFoodLabelingGuide,questionno.43,supranote18.
49
18V.S.A.§4086(West2011).
50
KingCo.,Wash.BoardofHealthR&R07-01(2010).
51
TownofConcord,Mass.ZoningBy-laws§4.7.1(2008);Calistoga,Cal.
MunicipalCode§17.22.040(2009).
52
LosAngelesCityCouncilGeneralPlanAmendment,(FileNo.10-1843,
Adopted12/10/2010).
53
Detroit,Mich.,MunicipalCode§61-12-91(2008).
54
ZieglerE,RathkopfAandRathkopfD.1Rathkopf ’s The Law of Zoning and
Planning§1:2(4thed.2009).
55
ZieglerE,RathkopfAandRathkopfD.1Rathkopf ’s The Law of Zoning and
Planning§4:1(4thed.2009).