This Tuesday the Food and Drug Administration (FDA) released draft guidance to help chain restaurants and groceries comply with a little-known provision within the Affordable Care Act that requires chain food locations to post calorie counts for all their menu items.
Proponents of the measure billed it as a simple way to give consumers more information about the content of their food and potentially reduce obesity. The industry, however, vehemently objected because forcing businesses to list exact calorie contents on all food items on physical menus would be impractical and costly.
Worse, in certain sections of the industry—like pizza shops—customers wouldn’t even see these physical menus since most order via phone or online. Or, even if they see a long list of options and calories, consumers may not understand the content of a given order since it’d be up to them to do the math: calculating how each topping or customization (e.g. extra cheese or sauce) adds up.
To address these issues, many shops voluntarily offer calculators on their websites that automatically tally the nutritional content of any order. Domino’s, for example, has its Cal-o-meter that tallies nutritional content of an order as customers choose their pizza options on their website. This sort of online calculator, however, is not enough to comply with the letter of the law: pizza shops would still have to list calorie content for every item offered on their menu, costing shops an estimated $1,600 to $4,700 a year, according to Domino’s CEO J. Patrick Doyle. According to the Food Marketing Institute, which represents retail grocery chains, the regulation would cost their industry $1 billion in its first year.
A fundamental question not addressed by the law is whether or not listing calorie content on menus would even benefit consumers as lawmakers hoped; evidence actually indicates it might backfire. According to research on the effects of the calorie labeling mandates already in effect in New York City and Philadelphia, the requirement resulted in no appreciable changes to consumer behavior. One study commissioned by New York City found that in some of the chains examined, customers did order lower-calorie meals once nutritional information was posted, but at most there was no change. In some—like Subway—the labeling actually seemed to increase calorie consumption with customers perhaps trying to get more bang for their food buck.
To address the industry’s concerns, members of Congress repeatedly sought to amend this provision to give shops more flexibility in how they disclosed nutritional information. But, despite bipartisan support, the bills haven’t gotten far. But now, the FDA, headed by new Commissioner Scott Gottlieb, is taking steps to clarify the law and make it easier for shops to comply.
While the new guidance doesn’t qualify online calculators as sufficient, it does allow some flexibility by letting shops offer calorie ranges instead of exact numbers. Also, the FDA would allow shops to offer an in-store electronic menu kiosk to comply with the law; basically, an in-store version of their online calculators. Furthermore, FDA clarifies that advertisements (like posters) and coupons don’t count as “menus,” as the provision was previously interpreted, thus stores wouldn’t have to post calorie content on these materials. All-in-all while it might not be ideal, it’s an improvement on the former scenario—a sprinkling of common sense on an otherwise foolish regulation. Even better would be to get rid of the requirement altogether and allow chains to decide for themselves how best to convey nutritional information to their consumers.