The FDA’s 105-page final rule on chain restaurant nutrition labeling of menu items now has an associated, 53-page, draft guidance document, supplementing the FDA’s 132-page Food Labeling Guide, we learned from the September 16 Federal Register. And you thought the ACA was only for hospitals, doctors and insurers. Silly you.

Need a drink? Here are a few excerpts from the Q&A menu Guidance given to covered bars and restaurants.

7.2 Can the declaration of calories for alcoholic beverages that are variable menu items be provided in a single calorie declaration?

Answer: It depends on how the alcoholic beverages are listed on the menu or menu board.  As with all variable menu items, including alcoholic beverages, that have the same calorie declaration, they can be grouped with a single calorie declaration, provided that the declaration specifies that the calorie amount listed represents the calorie amounts for each individual flavor or variety. See 21 CFR 101.11(b)(2)(i)(A). For example:

Wines by the Glass

Red Wine (Pinot Noir, Merlot, or Cabernet Sauvignon) 120 Cal $8.95

7.3 Can I use the format in the example below to declare calorie information for varieties of an alcoholic beverage, even though the varieties are listed separately on a menu?

Wines by the Glass

Red Wine ……………………………………120 Cal……………………………..$8.95

Pinot Noir (Description)

Merlot (Description)

Cabernet Sauvignon (Description)

Answer: If the varieties and their descriptions are listed separately but grouped in a single section of the menu and all of the varieties have the same calorie declaration, then a single calorie declaration could be used provided that the declaration specifies that the calorie amount listed represents the calorie amounts for each individual flavor or variety. See 21 CFR 101.11(b)(2)(i)(A). Otherwise, the calorie declaration must accompany each variety. See 21 CFR 101.11(b)(2)(i)(A)(4).

7.4 Can calorie declarations for varieties of beer or wine be disclosed in a range at the top of the list of such beverages on a menu or menu board?

Answer: It depends on how the alcoholic beverages are listed on the menu or menu board. If just a generic term is used and there are 3 or more varieties available, then a range can be used, for example:

Beer (70-120 calories)…..$x.xx

However, if each variety or flavor is separately listed then the calorie declaration has to be for each one listed (See 21 CFR 101.11(b)(2)(i)(A)(4)), for example:

Mary’s beer (70 calories)…..$x.xx

Pete’s beer (90 calories) …..$x.xx

Frank’s beer (120 calories) …..$x.xx

7.5 If there is a menu or menu board that lists beer on tap (that is not self-serve and is available upon request behind the bar) along with corresponding calorie declarations that can be viewed at the same time that the beer is selected by consumers, do calories also have to be listed on the top of the nozzle or on a sign adjacent to the nozzle?

Answer: No, if the menu/menu board can be viewed at the same time the customer is selecting the beer that is available on tap, then additional calorie declarations on the top of the nozzle or on a sign adjacent to the nozzle are not needed.

7.7 If a bottle of wine is on the menu list, should the calories be provided by the bottle or by serving size? For example, a 750 ml bottle of red wine contains 5 servings (5 fluid ounces per serving) with a calorie count of 123 calories per serving according to the USDA National Nutrient Database. Can the calorie declaration for that bottle be provided as 5 servings/123 calories per serving?

Answer: As noted in the previous question and answer, the calorie declaration must reflect how the covered establishment prepares and offers for sale the standard menu item. If the covered establishment serves the bottle of wine with glasses, then the calorie declaration could be based on the calorie content per glass, provided the number of glasses in the bottle is also included. Accordingly, if the bottle of wine is served in glasses whose capacity is 5 fluid ounces, then after applying the appropriate rounding rules, the calories could be disclosed as follows: 120 calories per glass; 5 glasses per bottle.

Predicted, related legal industry development: beer tap trolls.