New York City has revived its regulation requiring restaurants to post the calorie counts of menu items, which was overturned on narrow statutory grounds last month. A federal judge ruled that the requirement, which applied only to restaurants that voluntarily offer nutritional information, improperly ventured into an area covered by the federal Nutrition Labeling and Education Act. But since that law specifically regulates the practices of restaurants that supply information on their own, the city can make its regulation pass muster by broadening it. The new version, which is expected to be approved by the New York City Board of Health in January and take effect in March, covers restaurant chains with 15 or more outlets nationwide.
That change eliminates the perverse incentive created by the original regulation, which encouraged chains to refrain from releasing nutritional information and thereby avoid the cost and inconvenience of complying with the menu requirement, which says calorie counts have to be as conspicuous as prices. (Some chains, including Wendy's, Quiznos, and White Castle, stopped offering such information in anticipation of the new rule.) But the regulation still forces restaurants to engage in a form of government-mandated nagging, intended to have the same effect as paying someone to whisper "Are you sure you want fries with that?" in the ear of every customer contemplating his order. New York City Health Commissioner Thomas Frieden justifies the imposition this way:
The big picture is that New Yorkers don't have access to calorie information. They overwhelmingly want it. Not everyone will use it, but many people will, and when they use it, it changes what they order, and that should reduce obesity and, with it, diabetes.
Since many chains do provide calorie information (the very chains that would have been covered by the original regulation), it's simply not true that "New Yorkers don't have access to calorie information." If they really want it, the they can get it from posters, tray liners, and websites produced by chains that have decided enough of their customers are interested to justify the effort. And if the public were clamoring for calorie counts as loudly as Frieden implies, more and more restaurants would voluntarily provide them simply to make their customers happy. A legal requirement is needed only to the extent that people don't want to be reminded of how many calories are in a bacon double cheeseburger.