Are You Sure You Want Fries With That?

Jacob Sullum | October 26, 2007

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. 

Comments

JN|10.26.07 @ 5:50PM|#

MMMMMMMM, Bacon...

|10.26.07 @ 5:56PM|#

Has anyone considered deep-frying New York City Council?

What would their fat content be?

|10.26.07 @ 5:59PM|#

Doesn't anyone realize? If we just keep tinkering and fiddling, we'll create the perfect society. This government nannying/nagging about calorie counts is just part of the process. As soon as we've taken care of this bit of business, we can move on to the next Issue™, and tinker with that one until we've made it perfect, then move on to the next one, then the next one.

There are many problems and Issues™, but government will conquer all. And very soon we will have the perfect, problem-free society. Also, humans will not die anymore.

|10.26.07 @ 6:01PM|#

Has anyone considered deep-frying New York City Council?

What would their fat content be?

Abovee the neck 100%. Too damned easy, Aresen.

|10.26.07 @ 6:03PM|#

Also, humans will not die anymore.

Damn, I was looking forward to that.

|10.26.07 @ 6:16PM|#

JN, may I suggest the Baconator.

http://www.wendys.com/food/Product.jsp?family=1&product=4

Everybody sing along, "I Hate the Nanny State"

Dave Woycechowsky|10.26.07 @ 6:38PM|#

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.

This doesn't seem true. A better description is that some of the public the public (on the whole) wants them a little bit and restaurant owners don't want them a lot.

The main reason people aren't clamoring for them is that it is a new concept and they therefore haven't thought about the matter much one way or the other. Those who have thought about it would probably like the information, just not with the white hot intensity that the board at Yum Brands h8s the idea.

|10.26.07 @ 6:54PM|#

The main reason people aren't clamoring for them is that it is a new concept and they therefore haven't thought about the matter much one way or the other.

Well it's a blessed thing that our wise leaders are there to think these things out for us. Becaus neither I, nor anyone I know, can tell if a menu item is fattening without having that printed on the menu. It sure is comforting to know our sage and benevolent leaders are providing us with what we want before we are even aware of it. Sheesh!

|10.26.07 @ 6:59PM|#

New Yorkers don't have access to calorie information.

I'm used to bureaucrats being disingenuous, ignorant, and spinning debatable "facts" to support their pet regulations, but I see in New York they've risen their game to simply uttering objectively false bald-faced lies.

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.

It should be interesting to see their response in a few years when it is noted that obesity and diabetes have not gone down at all in NYC. Will they admit this nonsense is a failure and remove the regulation or will they cite it as evidence that the regulation doesn't go far enough and that obviously people still are don't have access to the information they need because they keep making bad choices?

I suppose it is only a matter of time before fast-food places are required to have on duty, and make their customers consult with, a nutritionist to review their order before serving them - "You'd like to super-size that? Ok, You'll need to wait over there for the nurse who will be out to weigh you and check your blood pressure. Then please have a seat in our waiting room and our nutritionist will see you shortly to advise you on the possible health risks of your order and offer you some healty alternatives. After that if you'd still like to super-size your order you may sign a waiver stating that you have been so advised and I'll have that right out to you. Now please step aside."

|10.26.07 @ 7:00PM|#

When the next recession becomes a depression, followed by a world-wide famine, all the fatties will outlive the skinny health nuts.

I'm packing on the pounds while I can.

MattXIV|10.26.07 @ 7:16PM|#

Since many chains do provide calorie information (the very chains that would have been covered by the original regulation)

This is very true. When I was watching my calorie intake closely a while back, I ended up eating at chain resturants (especially fast food ones) very frequently since the nutritional information was easy to find.

|10.26.07 @ 7:17PM|#

A better description is that some of the public the public (on the whole) wants them a little bit and restaurant owners don't want them a lot.

Every major fast-food chain makes calorie information readily available both at the restaurant on posters and pamphlets, as well as online. I have checked an item many times - as has anyone who "wants them a little bit."

The main reason people aren't clamoring for them is that it is a new concept and they therefore haven't thought about the matter much one way or the other.

Of course that's complete bullshit because it isn't a new concept as the calorie information has been available for years and everybody who has gone to any fast-food place knows it.

Those who have thought about it would probably like the information,

Those who have thought about it know that they already have the information. But don't let the facts get in the way of lecturing us on the real reason, which of course you know, that people aren't clamoring for the information to be posted on the menu.

|10.26.07 @ 7:18PM|#

You know, once you get past the obvious principled objection to government tinkering, this rule is really not so bad. (And no, it's not easy to get past that, but there must be about ten thousands laws already existent more obnoxious than this.) The worst I can say is that it's a slippery slope. But there should be an economic benefit in ensuring that consumers have easier access to information when making purchasing decisions, no?

|10.26.07 @ 7:29PM|#

I think it's a great idea!

If I walk into a fast-food restaurant with $5 in my pocket I want to know which things on the menu will give me the mostest for the leastest.

I have only one further request. Just as supermarkets are expected to post cost/weight unit prices, fast food restaurants should post cost/calorie unit prices. That would REALLY help.

|10.26.07 @ 7:30PM|#

Who the hell eats at a national chain in NYC? Get out of my town, and off my lawn, while you're at it... :)

DannyK|10.26.07 @ 7:32PM|#

I don't see how requiring nutrition facts to be posted is "government nagging." Maybe this really is a giant step on a slippery slope that will drop straight into a boiling vat of Fascism, but I'm not seeing it.

|10.26.07 @ 7:37PM|#

...but there must be about ten thousands laws already existent more obnoxious than this.

There must be about 10 thousand pieces of trash already existent strewn about Detroit more offensive than that used pamper somebody just tossed. I'm still going to bitch at them about it. Okay?

I know the analogy isn't perfect. It is much easier to pick up trash than repeal a law.

ed|10.26.07 @ 7:40PM|#

"The big picture is that..."

...it's for the children. And the retards. And all the fat people who need my help. And as a public official, I am sworn to...

etc. etc. etc.

|10.26.07 @ 7:49PM|#

Didn't the Applebees chain try something like this? It didn't work too well, apparently. People read the energy/fat content of their favorite meals on the menu, and were scared off buying them. Rather than order more modest meals, they just went to other restaurants which didn't print this information and ordered pretty much the same thing. It seems that people want to be fat, ignorant and happy.

|10.26.07 @ 7:51PM|#

ed, What do you have against fat, retarded children?

ed|10.26.07 @ 7:54PM|#

Nothing. I'll bet they are very tasty.

ed|10.26.07 @ 7:56PM|#

PIMPLY-FACED COUNTER DWEEB: Would you like a fat, retarded child with that?

ED: Of course.

ed|10.26.07 @ 8:06PM|#

And a Diet Coke.

|10.26.07 @ 8:13PM|#

A purely private market solution would be as follows: The information is available upon request, but because it is a business expense to compile the information and share, you add 5% to the cost of your order. I wonder how many folks would like to pay extra for the information under such an arrangement

Even if it is available at no charge, which is more realistic, how many people care?

What he should have said is, "I overwhelmingly want to regulate."

Fluffy|10.26.07 @ 8:37PM|#

Does anyone else think that - since it's obvious that the fast food restaurants already make this information available, on placemats and in pamphlet handouts - that what's really going on here is a thinly veiled attempt at harassment, and not even "nannying" per se?

McDonald's uses every square inch of their menu space to tell me about their food offerings. If they have to devote X% of their display menu space to calorie information, they now have 100-X% of the space they used to have to offer me products.

Obviously the real benefit here to the regulator is that they're fucking with and inconveniencing a vendor they don't like, by taking away their menu display space and making it more difficult for them to serve their customers.

DS Dan|10.26.07 @ 10:16PM|#

Out of all the things a nanny state can do, giving people useful information (and for anyone on a diet, calories are particularly useful) about what they purchase seems like a pretty small travesty against libertarian policies. I'm for it.

|10.26.07 @ 10:43PM|#

DS Dan misses that this regulation can only be justified by lying about the need for it, assuming that people are too stupid to feed themselves at a fast-food restaurant, and disregarding altogether the notion that there is a proper sphere for government that is something less than 100% of the known universe.

But other than that, what's the harm?

Joseph|10.26.07 @ 10:46PM|#

If this was about health information, why limit it to chain resturants? Do fat and calories not count if you eat them at the Russian Tea Room?

Robert|10.26.07 @ 10:51PM|#

What makes this whole issue even sillier is that energy content of foods is pretty standard. Bread is bread, hamburger is hamburger. Unless it's specifically a low-cal bread or something, which would be advertised as such anyway, is there any reason to think the energy content of chain restaurant menu items would differ greatly from that predicted by just knowing what and how big they are?

DS Dan|10.26.07 @ 11:05PM|#

My point is that there's a large amount of bad regulation that should be fought wholeheartedly. But wasting political capital on the least harmless regulation seems like a bad call and risks alienating those not of the libertarian elite.

|10.27.07 @ 1:13AM|#

My point is that there's a large amount of bad regulation that should be fought wholeheartedly.

Ever hear of Fabianism, DS Dan? You know, if you can't force nanny-state socialism on us all at once, you do it a little bit at a time? Like how the federal income tax started at 1% or so?

|10.27.07 @ 10:14AM|#

"Libertarian elite".

Whoo, whooo, giggle, sputter, giggle.

That was a good one Dan.

With an eighty bajillion dollar diet industry, how is it again that nutrition data is hidden from us and government needs to intervene?

Moreover, those who have a BMI over 40 and ROUTINELY order 1000 calorie, 60g fat burgers are one of three things: 1) compulsive overeaters, 2) educated and either in denial or uncaring about their personal risks, or 3) insufficiently educated to understand the data in the context of a complete lifestyle menu.

I would wager that for most of the real world, we understand the health implications. . . and occassionally just want a freakin bacon cheesburger.

In any and all cases, forcing fast food (and not other) restaurants to elevate this data beyond "available at our web site" or "available on request" which they already provide without government intervention is pointless and a continuing step towards the "Trans/unsaturated fat tax act of 2011".

Fluffy|10.27.07 @ 11:53AM|#

On the question of whether this is too innocuous to care about:

You have to nip these things in the bud. As noted above, since this stupid plan will have absolutely no impact on obesity, by allowing it to proceed we are setting ourselves up for the eventual nanny argument, "We tried education, but could not overcome the evil marketing power of the evil corporations. Obviously we need to take stronger measures to protect people from the fact that evil bacon quite evilly tastes good, in an evil way."

Tim|10.27.07 @ 1:14PM|#

I see your point Fluffy, but when Bloomberg is busy installing surveillance cameras on every street corner and Ray Kelly is creating his own personal CIA to infiltrate political groups, I think the focus on calorie count requirements and transfat bans is a distraction to the point of being counterproductive.

This is how someone like Jacob Sullum might end up actually supporting Rudy Giuliani for president.

|10.27.07 @ 2:42PM|#

"Welcome to the Nanny State Cafe - Would you prefer non-smoking or non-smoking? You want a menu? Oh, we don't need menus here, your government knows what you need to eat. And of course, your government knows best.

Uh-oh... I'm afraid you'll have to leave now. The computer just scanned your mandatory surgically implanted RFID tag and the public health database reports that you've already exceeded your caloric quota for the day."

/sarcasm

Ventifact|10.27.07 @ 4:17PM|#

Unless you just had a day of hauling lumber all day, or you're coming home from a basketball game, WHATEVER you order at McDonald's will not be weight-neutral for your body. Everyone understands this. Some people choose to pretend not to know, or not to care, and some do so responsibly while others compulsively or irresponsibly. That's all.

|10.27.07 @ 4:44PM|#

Y'know, back in the good ol' days, before Mickey Ds, nobody, not a single person, was fat. It's all the evil corporations fault.

|10.27.07 @ 7:09PM|#

Meh. As a libertarian NYCer, I have to rate this threat somewhere between being splashed by the Department of Street Juice, and the f*ing F train not stopping at 14/Union randomly.

Sure, incremental buildup, remember Tammany, etc. But really, is this worth all that?

Barbar|10.28.07 @ 10:11AM|#

Silly people, this legislation will clearly have no effect at all! Consumers are already perfectly informed about their decisions, so their behavior will be completely unaffected. And producers are already providing this information, so their behavior will also be completely unaffected.

So no upside, no downside! The libertarians who get upset about this are just as silly as the NYC government. Why worry about nonexistent effects?

|10.28.07 @ 10:34AM|#

Because, Barbar, the default position should be that the state should not intervene without good reason for doing so.

Dave Woycechowsky|10.28.07 @ 11:11AM|#

Those who have thought about it know that they already have the information. But don't let the facts get in the way of lecturing us on the real reason, which of course you know, that people aren't clamoring for the information to be posted on the menu.

There is a big difference between having the information available on the menu and having it available online online.

If there wasn't, the ppl in Jake's rolodex wouldn't be making such a big deal of this.

J|10.28.07 @ 3:57PM|#

I don't understand how this is a big deal or at all indicative of a "nanny state." Are you also clamoring for the removal of nutrition facts from cereal boxes? I would very much like to know what is going into my body, and frankly, a small blurb hidden on a company's website is simply not accessible enough. At a fundamental level, this is not about regulation; this is about ensuring people have the information they need to make responsible decisions.

Sure, perhaps some of those in favor of this law would also not mind a "trans/unsaturated fat tax act of 2011." Regardless of the inclinations of some of this law's supporters, however, I believe any libertarian should be in favor of more readily available information.

|10.28.07 @ 6:48PM|#

I would very much like to know what is going into my body, and frankly, a small blurb hidden on a company's website is simply not accessible enough. At a fundamental level, this is not about regulation; this is about ensuring people have the information they need to make responsible decisions.

Then stop putting things into your body that you don't have sufficient information about. Only purchase food from producers that do provide the information.

There, was that so hard?

I was just at the store today and General Mills is putting nutrition info in a bulleted graphic on the *front* of the box. Good for them.

Should we guess that because Post doesn't and that your day just isn't complete without your Fruity Pebbles that we have to have YAFLDAN (Yet Another Federal Law Doing Absolutely Nothing)?

|10.28.07 @ 7:02PM|#

I don't understand how this is a big deal or at all indicative of a "nanny state." Are you also clamoring for the removal of nutrition facts from cereal boxes? I would very much like to know what is going into my body, and frankly, a small blurb hidden on a company's website is simply not accessible enough. At a fundamental level, this is not about regulation; this is about ensuring people have the information they need to make responsible decisions.

Sure, perhaps some of those in favor of this law would also not mind a "trans/unsaturated fat tax act of 2011." Regardless of the inclinations of some of this law's supporters, however, I believe any libertarian should be in favor of more readily available information.

Your libertarian principles are completely skewed and your assumption of what a libertarian should generally want is off. Libertarians aren't asking for a complete removal of the Nutrition Facts label off the side of your cereal box. Such regulation is against libertarian principles because it's a ban. Then again, forcing its usage is also regulatory.

The problem solves itself. I agree: I want to know what is going into my body. So do a lot of other people, and because of this, a reliable store wouldn't dare sell food products that didn't have a reliable standard and a reliable brand wouldn't dare sell food without a reliable standard. But why punish those who don't care?

Just look at ESRB. The ESRB is not in any way run by the government or is required by law for stores and companies to follow. It's completely voluntary and it has become the standard for any game that wants to get onto the shelves and AO games are pretty much never sold in stores. Yet at the same time, if I wanted to, I could sell AO games at my store.

The truth is, many Americans couldn't tell the difference between trans, saturated, unsaturated, polyunsaturated, and monounsaturated fats. There are many Americans that don't realize sugar substitutes like aspartame or sucralose, if they even know what they are, may be much worse for them than normal glucose, galactose, fructose or even sucrose. The stuff on the label barely matters to people, or at least they don't know what it means and assume that the good stuff is actually bad. People are tricked into that kind of stuff all the time. Have you ever heard a politician say they're going to lower the marginal tax rate? If you think that means your taxes are going to go down under him--congratulations, you've been tricked.

J|10.28.07 @ 10:17PM|#

Daniel,

I apologize for misspeaking - I meant to ask whether libertarians were clamoring for the removal of nutrition fact requirements. Its forced usage is the same regulation that is being asked of these restaurants. I believe with this correction, my post does not suggest that my "libertarian principles are completely skewed" as you so kindly suggested.

I disagree with your statement that it is only because so many care about it that food products are sold with a reliable standard. If there were no requirements for the form or existence of nutrition facts, I guarantee they would not be as universal and universally accessible as they are today. Even if you believe that nutrition facts of some sort would be common, without any kind of regulation, they would vary in form and could be confusing or misleading to an average, rational consumer. In this case, a minimal amount of regulation concerning the form and substance of these facts, whether it be state, federal, or self-regulation like ESRB, makes sense.

The ESRB comparison is valid only in that the system was developed after threatened intervention from the federal government.

I understand that politicians mislead and that many Americans are uninformed. I do not see how this factors into the debate. If anything, it provides an argument for having readily available, verifiable information.


JW,

That this is a law that is not doing much is exactly my point. Why don't we concern ourselves with laws that do serious harm?

Sue|10.29.07 @ 1:49AM|#

It's a great idea,what are the new menu items.

|10.29.07 @ 7:16AM|#

That this is a law that is not doing much is exactly my point. Why don't we concern ourselves with laws that do serious harm?

Who said it does no harm? It just doesn't accomplish anything useful, other than adding to the state's powerbase.

Just because it doesn't involve unauthorized wiretapping doesn't make it any less harmful to a free society. I don't want the US to end up like the UK, nagged and hectored to death, when it isn't banning things outright the power elite don't like.

|10.29.07 @ 9:25AM|#

And this applies to chains restaurants only. By their reasoning, mom-and-pop stores do not serve calorie-laden foods and do not need to display nutritional information.

Kind of hard for the council to defend itself against accusations of being knee-jerk anti-business.

|10.29.07 @ 11:04AM|#

Very disingenuous, JW. The poster asked if there was harm in the law, and the best you seem to muster for an answer is Yes." Can you actually explain the harm caused by "hectoring and nagging?" Does anyone have anything more substantial than a slippery slope argument or simple distaste?

We've had such labeling for years in supermnarkets, and I don't feel "hectored" there. In fact, I'm often awestruck by the sheer number of choices available. The law obviously does not impede sales, and it allows me to make informed decisions about what I buy. I don't understand why applying the saame standards to food chains is either a burden or nannying.

I certainly don't feel "nannied" having easy access to nutrition information, nor do I see any possible reson to fpocus on this nonsense as a political issue when we do have unauthorized wiretapping and other real, tangible threats to liberty to deal with.

This is embrassingly petty. The cons have their "war on christmas," but the libertarians are griping about petty labeling laws as affronts to freedom?!

|10.29.07 @ 11:39AM|#

A bad law is a bad law. If this issue is so petty, why are we even talking about it here? Oh, it's because we oppose ALL BAD LAWS! So far we have at least three references to the slippery slope in this comment thread. Hello? That's why we use the phrase 'slippery slope'. No bad law is too petty to be opposed.

|10.29.07 @ 1:36PM|#

Very disingenuous, JW. The poster asked if there was harm in the law, and the best you seem to muster for an answer is Yes." Can you actually explain the harm caused by "hectoring and nagging?"

Jennifer, I said I don't want to end up like the UK, where they are hectored and nagged to death by a Poppins Berzerker state. It didn't happen overnight. I'm betting they started small, with something like another labling law.

Slippery slope? Ask the restaruant industry how that smoking thing is going.

As has been pointed out already, the information is there. Don't like how they do it? That's the rationale why there should yet one more law? So you don't have to try?

Is it silly? Sure, no less than the grandstanding NYC Council. When they came for the Pop-Tarts™, I didn't speak up...