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.
Some in the latter camp seem certain that others should simply divine a way to comply with the FDA's proposed rules.
"I think pizza places should label calories—really, they can figure out how to do it," New York University professor of public health Marion Nestle wrote at her Food Politics blog over the summer.
One way pizza chains might do so is to post a calorie range for all menu items. But pizza makers argue that such a range would be too broad and, anyways, 90 percent of their customers order their food online or over the phone—making in-store posting not just costly but also irrelevant and unhelpful to consumers.
Nestle says she doesn't buy that argument.
"The idea that the range of calories is so great as to be meaningless I don't think holds any kind of water—or mozzarella cheese—at all because it at least gives you a ballpark figure," she told CBS This Morning in June.
But that's a startling and confusing reversal for Nestle, who was highly critical of the FDA permitting those same menu calorie ranges in an April post at her Food Politics blog.
"I noticed other key omissions in the FDA's proposed rules," Nestle wrote then. "For one thing, they allow impossibly large ranges such as the 200-to-800 calories that Chipotle posts, for example."
Just to recap Nestle's argument: Pizza chains can figure out how to label menu items. Large calorie ranges are a reasonable way to label menu items. The FDA should not permit large calorie ranges as part of menu item labeling.
Given Nestle's conflicting arguments and—more important—the potential cost and logical impossibility of displaying millions of possible calorie counts on a menu board, it's no wonder that the American Pizza Community and grocers are seeking reasonable accommodations.
"What does make common sense is to put the information online or in handheld menus, where it's useful to consumers and affordable for small business pizza shop owners," Liddle tells me. "We're just asking for a reasonable approach to calorie disclosure. You wouldn't think that would be so hard."
I don't support coerced menu labeling generally because it limits culinary innovation and doesn't appear to achieve its stated goal of reducing calorie intake.
For pizza chains—the bulk of which serve customers who purchase online or over the phone and who may (like me) never order a pizza from inside a Domino's or a Papa John's, permitting calorie counts to be posted online and via smartphone and tablet apps makes sense. In the case of grocery stores, it's clear Congress never intended the FDA's restaurant menu labeling law to apply to them.
A bill introduced last year by Rep. John Carter (R-Texas), the Common Sense Nutrition Disclosure Act of 2012, would have exempted pizza chains and grocers from being forced to comply with the new rules.
Time ran out on the bill with the seating this week of the new Congress. But supporters of the bill are optimistic it will be reintroduced and pass soon in the new Congress. I, for one, hope Congress orders up this slice of wisdom.