That burger is how many calories?

Consumers rolling up to drive-throughs may have noticed the calorie counts at fast food chains in recent years. And soon, consumers can expect to start seeing calories on display at additional restaurants and food venues.

The reason stems from Food and Drug Administration (FDA) rules that the agency was slated to start enforcing on May 5, but just recently delayed until May 2018. This rule means certain restaurants will need to include calories on their menus or face penalties starting next year.

And while many large chains are already displaying calories — including the Minnesota-made chains such as Dairy Queen and Dunn Brothers— the new rules pose significant changes and hurdles for newer or medium-sized chains.

Why calories and why now?

This federal effort to give consumers more food information follows a trend at the state and local level dating back over a decade. There's long been a push to provide consumers with more information about the food they eat, in the hopes of promoting healthier lifestyles. At first, many in the restaurant industry fought these regulations, noting compliance was expensive and fearing calorie count displays might hurt demand.

However, as these laws rolled out across the country and as data rolled in showing marginal change in consumer behavior, restaurants switched to favoring a federal standard, rather than face a patchwork of laws and regulations. As a result, the Affordable Care Act authorized the FDA to set the rules, which were implemented in 2015, giving the restaurants a few years to come into compliance before the start of enforcement.

Who is affected?

Restaurants, coffee shops and other "covered establishments" (such as delis and buffets found in grocery and convenience stores) with 20 or more national locations under the same or similar brand, or under common ownership, must follow these rules.

Restaurants with fewer than 20 locations may also opt to register to be governed by the FDA rules. This may be an appealing option for smaller chains that want to be subject to just one set of standards, rather than several different standards in different cities and states.

What are the rules?

The FDA rules require venues to disclose several pieces of information to consumers and certify the information is correct. First, menus must show the calories of the items that are routinely offered. There is an exception for items that appear periodically and for menu items that are being test marketed. Second, restaurants must make additional nutrition information — such as fat, protein, carbohydrates, sodium and the like — available upon request. Also, restaurants must certify that the calories they display match the calories in the food that is served.

It is unclear what shape FDA enforcement will take. The agency has indicated it is still working on an enforcement plan and the precise penalties. They have hinted at partnering with state and local officials to enforce these regulations, particularly in places that already had menu-labeling rules in effect.

Once enforcement begins in May 2018, inspectors will likely visit stores and ask to see caloric and nutritional information. They also might ask for certifications about the accuracy of the calories disclosed on the menus and about the precision of following the recipes.

Operating challenges

Restaurants that must display calories face some operational and legal challenges. For example, costs of menu redesign and printing can be steep, and it can be challenging to display the calories in a conspicuous way while maintaining aesthetic aspirations.

Also, adding items to the menu is now more complicated than just adding the item to the list. The item will need to be evaluated for calories and other nutritional information before it can go on the menu. Further complicating the mix, the rules require each restaurant location to certify that it follows the recipes for the items closely to ensure that the calories in the food served match the calories displayed. This can be challenging to manage consistency for chains with many locations.

Displaying calories also carries some legal risk. Particularly, there is a potential for consumer class action groups to test food items to see if they match the calories displayed. Recently, Chipotle was sued in California for having inaccurate calorie counts for its chorizo burrito. These cautionary tales should keep businesses vigilant in ensuring consistent production of food items to match the calorie count on display.

Guidance for compliance

Restaurant chains subject to these rules need to revise menus to disclose calories, as well as update websites in cases where customers can place orders online.

Running any potential changes by an attorney with experience in these issues will also help restaurants make sure their investment in these changes add value to their business while minimizing legal risk.

Bon appétit!

Julia Dayton Klein is a principal at Minneapolis-based Gray Plant Mooty.