This week, as a new Congress was being sworn in, the Food and Drug Administration released two sets of controversial and long-delayed food-safety rules.
Another FDA rule that’s been long in the making is the agency’s proposed menu-labeling rule.
The purpose of that rule, first proposed in 2010 as part of the Patient Protection and Affordable Care Act, is to “provid[e] information to assist consumers in maintaining healthy dietary practices.”
In 2008, California became the first state in the nation to adopt a uniform menu-labeling law. The law had the backing of the state’s restaurant association—a surprising turn of events until one considers that chain restaurants in the state had been forced to deal with an increasing number of varying menu-labeling rules in municipalities throughout the state. With more and more states adopting their own menu-labeling rules, the National Restaurant Association adopted the California strategy and sought a shield against this death by 1,000 cuts by pushing for one uniform national menu-labeling rule. (I detailed this chronology in a 2010 Chapman University Law Review article, The “California Effect” and the Future of American Food: How California’s Growing Crackdown on Food & Agriculture Harms the State & the Nation.)
The delay in implementing the FDA’s menu-labeling rule appears to have resulted, to the consternation of many in the food industry, in an expansion of Congress’ original intent. As it’s now constructed, the rule would apply not just to chain restaurants like McDonald’s and Applebee’s but also to grocery stores and chain pizza restaurants—both of which oppose the FDA’s plans.
Nancy Huehnergarth, executive director of the New York State Healthy Eating and Physical Activity Alliance, tells me she supports the proposed FDA rule because it would provide information at the right place and time.
“The key to menu labeling and getting it to work is that people see the calories at the point of purchase,” says Huehnergarth.
Pizza chains, which have banded together to oppose the FDA’s plans to have the rules cover them, have good reasons to chafe at being included under the law.
For one, most have been providing nutrition information for years. The Papa John’s website displays nutrition information under each menu item, for example, while Domino’s website features a tool it calls a Cal-o-Meter. For pizza, the point of purchase is most often online or over the phone.
In an op-ed published last year in The Hill, the CEO of Domino’s, J. Patrick Doyle, criticized the proposed rule as “a one-size-fits-all set of rules for menu labeling that will result in wide calorie ranges for entire pizzas on menus consumers will not even see, but will cost small business owners thousands of dollars a year.”
Those costs can range upwards of $5,000 per franchise location. The cost to grocers—a cost that, as with pizza, would no doubt be passed on to consumers in the form of higher food costs—would be even greater.
Why so costly?
"With 34 million ways to make a pizza, it makes no common sense to require this industry—which already discloses calories voluntarily, for the most part—to attempt to cram this information on menu boards in small storefronts,” says Lynn Liddle, who chairs the American Pizza Community, a coalition representing much of the American pizza industry, in an email to me.
To put that number of pizza choices in perspective, consider that nearly every single person living in Canada today could order an entirely different pizza from Domino’s—where the chain is also popular.
Opposition—from those like me who say the proposed rules go too far and those who argue they don’t go far enough—has slowed the FDA as the agency has sought to craft a final rule.