Restaurants in New York City with 15 or more outlets nationwide now must conspicuously post the nutritional content of each item on their menus. Similar legislation is coming to San Francisco and Seattle, and is under consideration in about a dozen other cities and state legislatures.
At first blush, this seems like a good idea. Why not force restaurants to let their consumers know the nutritional value of what they're about to eat? If we're to believe what the public health world says about our bulging waistlines, perhaps a little more information would be a good thing.
The American Prospect's Ezra Klein made this argument last month, writing, "It's a bit rich to watch libertarians and associated anti-government types oppose a regulation that gives consumers more useful information. This, after all, is how markets are supposed to work best. Consumers have better information, can pursue their preferences in a more coherent manner, and the market can provide, adapt, and innovate in response."
It's a compelling argument. But the menu labeling debate is actually a bit more complicated than that.
First, it's expensive to send an entrée to a nutrition lab for testing. Labs typically charge $850 to $1,000 for the service, and most restaurants will want to test an item more than once to ensure accuracy. Any "have it your way" customization of an item would also need to be tested, which means a typical sandwich might need to be tested dozens of times to account for the various condiments and accouterments a restaurant may want to offer.
There is another way to gauge the nutritional content of menu items that's a bit less expensive. That is to break every item down to its most basic ingredients and their quantities, then to run those ingredients through a nutritional database, which adds the ingredients up, then spits out totals. This too has its problems, in that it requires restaurants to (a) turn over proprietary recipes for analysis, and (b) abide by those recipes every time, without fail (remember this the next time a fast food critic laments how "it all tastes the same").
The main problem with all of this is that it requires restaurants to slavishly adhere to the recipes of the dishes they originally sent away for testing. Let's say a particular batch of tomatoes delivered to a restaurant were particularly bland, for whatever reason. Don't even think about adding an extra dash of salt to your dish to compensate. If the original dish had only a dash of salt, you've just doubled the sodium content.
You can also forget about substitutes, seasonal variety, or allowing customers to customize dishes in ways that haven't been broken down.
Forget about "going local," too. Buying from local growers is less predictable than buying from a national network of food suppliers, where shortages or disappointing harvests from one area of the country can be accounted for by purchasing more from other areas. Buying local would require variance in menus that could become cost prohibitive.
Menu labeling laws mean every restaurant in a given chain needs to make every dish exactly the same way, every time. Most menu labeling laws allow for a 20 percent margin of error. This is the same variance allowed for the nutritional information on manufactured food products, where assembly-line machines cut exact portions and abide by standardized recipes using the same ingredients, every time. That's quite a bit different than having real live people making dishes from what's available in the kitchen. Yet both are held to the same standard.
Of course, the labeling of manufactured foods is another argument in favor of the futility of these menu labeling laws. We've been labeling packaged foods for decades now—the foods that make up the vast majority of our meals and snacks and where we get most of our energy. And we're still getting fatter.
Supporters of menu labeling laws know that complying with these laws will be expensive and onerous. That's why they've only applied them to chain restaurants—restaurants they say can afford to send dishes off for nutritional testing. That makes the targets of menu labeling laws corporations, a more politically palatable target than the mom and pop diner.
Still knowing that adding a new dish to the menu could cost several thousand dollars and will almost certainly result in one of two consequences: Either restaurants will dramatically cut down on variety and serve only meticulously portioned cookie-cutter dishes, or they'll merely pass the costs of testing additional dishes on to consumers.
Certainly, the chains that just make the cut of 10-15 franchises (depending on which law you're talking about) will think twice before offering a perk like daily specials, where each new daily dish could add thousands of dollars to the company's bottom line.
But even large chains are going to be more hesitant about regional variety. And chefs at high-end spots like steakhouse chains are going to be extremely unlikely to create customized meals, or prepare dishes for people with specialized diets.
The other response to the "we're only requiring this of the restaurants who can afford it" argument is that if that's the case, what's the point of having the law in the first place? The New York City law will only affect about 10 percent of the city's eateries. If the goal is to combat obesity, you're missing 90 percent of the places where people are eating.
What's more, according to the National Restaurant Association, we buy just six of our 21 weekly meals from restaurants. Put another way, menu labeling laws mean this newly available nutritional information will be put in front of the average American for only about three of every 100 meals. We aren't getting fatter because there aren't fat-count stickers on our Big Mac wrappers—as if any of us were mistaking a Big Mac or chili-and-cheese slathered fries for a healthy snack, anyway.
Of course, most of the really large chains already make nutritional information available—either online or in pamphlets you can find at the restaurant. Calorie counters and people watching their sodium or sugar intake can find this information relatively easily if they need it. And they can choose not to patronize those restaurants that don't make it available.
The menu labeling crowd wants nutritional information posted in big letters on menu boards or slapped on the packaging of the foodstuffs themselves. The goal of menu labeling legislation, then, is much more paternalistic than merely to "make more information available." It's to force nutritional information on people who aren't necessarily looking for it.
Then there are the lawsuits. When McDonalds voluntarily agreed to post its nutritional information on the Web several years ago, it wasn't long at all before the nutrition fanatics at the Center for Science in the Public Interest (CSPI) attacked the company because a couple of McDonalds employees served covert CSPI reps overly large ice cream cones.
Earlier this month, a Seattle firm filed a class action suit against the Applebee's chain because of what the firm says were errors in its nutritional menu labeling. Days later, the same firm filed a similar suit in Texas, this time aimed at the Brinker chain, which owns brands such as Chili's and Macaroni Grill. Of course, if these restaurants deliberately mislabeled nutritional information or didn't bother to accurately test food labeled as "healthy," they should be held accountable.
But it's also impossible to make the same dish the exact same way every time. Such is the reason why large chains that already chose to make nutritional information available test the same dish multiple times to arrive at an average. But if you're looking for a reason to sue, you're only going to include in your claim the chains that served dishes that came out well over the posted data, not under or within a reasonable margin of error.
This is the main reason why restaurants have been reluctant to provide nutritional information in the first place. An extra pat of butter, an extra dash of salt, a substitution here or there, or even a generous chef who —God forbid—decides to give a customer a generous portion, could trigger a class action lawsuit.
These menu labeling bills have put restaurants in a no-win predicament. Their best bet is to mechanize their kitchens and to take all variety and spontaneity out of their menus—which isn't exactly a good outcome for consumers. And you can bet that when the latest round of menu labeling bills fails to make us any skinnier, the nutrition activists will start taking aim at the smaller chains and independent restaurants too.
Radley Balko is a senior editor for reason. A version of this article originally appeared at FoxNews.com.