Menu Labeling

'Common Sense' Means Repealing the FDA's Menu-Labeling Mandate

Congress considers amending the rules. What it should do is get rid of them.

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Menu
Credit: akasped / photo on flickr

Last week, the U.S. House of Representatives voted 266-144 in favor of the Common Sense Nutrition Disclosure Act of 2015. The bill now heads to the Senate for consideration.

If passed, the bill would amend a host of menu-labeling rules that were adopted by the Food and Drug Administration (FDA) under the Affordable Care Act (more commonly known as Obamacare).

While the Obamacare labeling mandate had been envisioned to apply to chain restaurants with 20 or more locations in the United States, including McDonald's, TGI Fridays, and Ruth's Chris Steakhouse, the FDA rules cast a far wider net. Those rules the FDA drafted cover seemingly every sort of chain that serves food.

"That includes prepared foods at grocery and convenience stores and in movie theaters, bakeries, coffee shops, pizza delivery stores, and amusement parks," the Associated Press notes.

The Common Sense Nutrition Disclosure Act would provide pizza chains in particular, which have pushed for the bill's passage for years, with a variety of new ways to comply with the law and strengthen limitations on liability for all restaurants covered by the law.

Besides pizza chains, some grocers support the measure. The National Grocers Association, for example, praised the House for passing the bill. A coalition of public-health activists and academics, on the other hand, has urged Congress to reject the bill, asking lawmakers "to support consumer choice and American[s'] health" by voting down the Common Sense Nutrition Disclosure Act.

The Obama administration, which supported the original menu-labeling provisions, hasn't said whether it would veto the current bill.

Critics of mandatory calorie labeling, including me, have argued for years that menu-labeling provisions, including those adopted by the FDA, are rigid, overly inclusive, overly burdensome, pointless, and counterproductive.

For example, research indicates mandatory menu labeling may not just be ineffective, but also counterproductive. Studies have found that customers who view calorie counts on restaurant menus have been shown to eat more calories, rather than fewer. Contradictory studies that have touted menu labeling tend to be filled with qualifiers, along the lines of a small percentage of the small percentage of consumers who self-reported that they noticed calorie information on restaurant menus reduced their calorie intake by a small amount.

Perhaps most importantly, enforcing the rules will be tricky. The FDA currently does not inspect restaurants. It would be absurd for an agency that claims both its budget and its inspectors are strapped to suddenly take on the visual inspection of tens of thousands of restaurant menus around the country. The FDA might seek to hire local inspectors to do the job—by paying state and local health departments to do the work for them, including in states and cities that adopt legislation that mirrors federal law, as this writer suggests.

But in states where legislatures are hostile to the Affordable Care Act generally or to its menu-labeling provisions specifically, I suspect lawmakers are more likely to pass legislation to block such enforcement than they are to pass legislation that would support the federal law.

All this makes the menu-labeling provisions of the ACA sticky at best, and likely ripe for a court challenge.

It's perhaps for this latter reason that the FDA announced this past summer it would not begin enforcing the ACA menu-labeling rules until December 2016. That gives supporters of the Common Sense Nutrition Disclosure Act of 2015 a window in which to tweak the law.

Better still, based on all of the problems inherent with mandatory menu labeling, would be action in Congress to repeal the law. But that's unlikely.

"We are not debating the merits of calorie counts in restaurants," said Rep. Cathy McMorris Rodgers (R-Wash.), who introduced the Common Sense Nutrition Disclosure Act, in a recent op-ed in The Hill. "We are debating if this specific, 400-page rule is workable."

It's unworkable. But it's too bad that discussing the merits of mandatory menu labeling appear to be off the table.  As law, regulation, and policy, menu labeling is wildly unsettled. It's one that's very much in need of thoughtful debate.

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  1. Wait did congress also pass a bill that required all bills to have the phrase “common sense” in them?

    1. That little bit of marketing genius has worked so well in the push for gun control legislation.

      1. But in this case it really is common sense.

        1. Purely a coincident, I assure you.

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    2. i think you can substitute “decency”, and i think the overuse of the word is a case of the lady protesting too much. like saying “it goes without saying…”

    3. As soon as you see those two words or some kid’s name, you can default to “bullshit.”

  2. While the Obamacare labeling mandate had been envisioned to apply to chain restaurants with 20 or more locations in the United States, including McDonald’s, TGI Fridays, and Ruth’s Chris Steakhouse, the FDA rules cast a far wider net.

    Leaving it to executive bureaucracy to define the application of legislation usually works out so well for Congress.

    1. “While the Obamacare labeling mandate . . .

      Is there no end to this vile monstrosity?

      Five votes in the House. Al Franken winning a recount in the Senate.

      http://tinyurl.com/hbp6hbu

      This is how the government justifies making decisions about my life.

      1. Lest we forget how that recount was “won”.

  3. Congress should just scrap it entirely, but it won’t.

    You’re not supposed to take away my hope in the tease.

  4. I just glanced over the threads from last night.

    I see there is another ‘racism’ incident at a college, this time Texas A&M. Complete bullshit.

    Edward Teach, a.k.a. Blackbeard, in his last stand against the British Navy was shot 5 times, stabbed more than 20 times and hacked in the neck with a cutlass. He used one hand to manually hold his head on then killed three more men before collapsing.

    Every time I hear some little pussy whining about their feelings it makes me want to spit on them.

    1. And I bet that syphilis he had hurt a lot too.

    2. This coming generation will either destroy us or make us stronger. They are certainly going to test the will of every person who laughs at the occasional racist, sexist, gay or retarded person joke*. Because they want to essentially shame those people into the shadows.

      *Unless they’re making fun of straight white men. Then they’re welcomed into the club.

  5. A slow death by 535 pricks…

    1. ::golf clap::

    2. I would add another 10. 11 if you want to count Biden.

  6. “We are not debating the merits of calorie counts in restaurants,” said Rep. Cathy McMorris Rodgers (R-Wash.), who introduced the Common Sense Nutrition Disclosure Act, in a recent op-ed in The Hill. “We are debating if this specific, 400-page rule is workable.”

    Of course the 400-page rule based on the 4-and-a-half-page law will be workable, just as soon as they add a few thousand pages of interpretations and rulings and gloss to it over the next 20 years or so. Doesn’t the FDA have its own SWAT team and its own administrative appeals process? Why should they give a rat’s ass if Congress or the President thinks it’s workable? The bureaucracy has but one goal and that’s to grow and to metastasize as long as there’s no immune system to fight it. May be time to start amputating some cancerous limbs if we hope to save the body.

    1. The bureaucracy has but one goal and that’s to grow and to metastasize as long as there’s no immune system to fight it. May be time to start amputating some cancerous limbs if we hope to save the body.

      Vote Woodchipper 2016!

  7. Common-sense in 400 pages!

    The material writes itself!

  8. Bernie Sanders is wrong about the Koch brothers: They’re even more dangerous than he thinks

    Saw this posted in the Koch editorial comments and felt compelled to rant a bit. The article itself is awful and trite, but reading the comment section was a nice reminder of how libertarians and the left don’t perceive the world the same. They amazingly can articulate that power breeds corruption, but seem oblivious to how that relates to government. They believe that rich individuals should have no more say or influence in politics than any other voter which is not only impossible, but which would obviously be contradicted by the number of rich individuals and activists they would support. A large number of the comments seem to indicate that the Koch brothers are involved in a plot – a conspiracy almost – to replace government with rule by corporation.

    To be frank, they are just dumb as well. They get into some babble about power and corruption and how difficult it is to articulate the complexities of how the two interact. It’s inocherent. I’ve run across some crazy libertarian types. I’ve seen them on this site. But I struggle to comprehend how anyone could read those comment sections and compare them to the ones here and not come away thinking that libertarians are just objectively more intelligent and rational.

    1. The real fear of the modern left is that people will be judged (by others) by the content of their character rather than the color of their skin (or their sex, or their sexuality, or their age, or their socioeconomic status, or their ethnicity, or a million other things the modern left used to judge people so they can infantalize and “protect” them).

      Basically, they abhor everything MLK strived for because it terrifies them.

      1. Proof of what you say:

        http://www.mediaite.com/online…..ve-enough/

    2. The Washington post comments on the Koch editorial showed a lot of this incoherence. It was like reading radio static.

      1. I thought it was deeper than that. To me it was like getting a look at the progressive playbook both politically and socially for the next generation. They want to literally silence these men and want to legally strip them of their resources, power and ability to engage in political campaigning or issues-based advocacy.

        The words of those people merely echo those of modern day Democrat politicians. Their intentions become clearer every time I read one of those stories and follow that up with a Team Blue policy statement that calls for having the 1A Rights of the same people taken away.

    3. They amazingly can articulate that power breeds corruption, but seem oblivious to how that relates to government.

      There is nothing amazing about it once you recognize all their arguments as *rationalizations* for their increased power.

      They can see that power breeds corruption, but they will only use and accept that argument when applied to their enemies, not themselves.

  9. OT: Winner of national transgender beauty pageant stripped of her title because she was ‘not transgender enough’

    Sometimes it doesn’t sound terribly liberating to be a gender bender. It sounds like permanent middle school.

    1. What a dick.

    2. But six months on she has had her title removed after organiser Rachael Bailey claimed she was shown footage of the model in boxer shorts.

      The pageant runner branded Jai a ‘drag queen’ and accused her of not living full-time as a woman.

      Strong evidence.

      1. organiser Rachael Bailey claimed she was shown footage of the model in boxer shorts.

        Like (genetic) chicks don’t wear boxers around the house as loungewear all the fricking time.

    3. Wait. Your genitals are not proof of gender – that’s just a social construct. But your choice of underwear….

      Underwear.

      1. Don’t forget that s/he was also seen working out in a gym wearing shorts and a t-shirt.

        Shorts. And a t-shirt.

        1. Moral of the story: Clothes really do make the man.

          1. clap clap clap clap clap!

        2. All womenz work out in a sports bra and leggings…or the hot ones should at least.

          1. Not if they’re trying to cover up the worst case of hemorrhoids I’ve ever seen.

    4. Jai Dara Latto plans to hike 30 miles in high heels to highlight the issues faced by those awaiting gender transition

      That will certainly highlight *xyr* issues, at least.

      1. “xyr” is just code for saying male. XY being the chromosomal explanation for what society has inaccurately called “male” since chromosomal definitions come to be. Seeing as gender is fluid and has more to do with feelings than chromosomes, using “xr”, “xyr” or “”xxr” as non-gender-specific pronouns is both othering and wrong. An appropriate gender neutral pronoun wou be “xzr” or even “zzr” since there are people that don’t see zzselves as being male, female or even strictly human in the traditional sense of the word. So please, think before you attach clever labels to these people (and non-identified-as people). Think about zzs/r feelings before you speak.

        -idiot activist

        1. The idiocy of this movement highlights the lack of a legitimate cause that these loser have. They are activists without an issue. Pobrecitos.

        2. Hulk upset and triggered that idiot activist flashes pronoun trigger when Hulk is incapable of using pronouns due to brain damage. This make Hulk ANGRY!

          HULK SMASH (THE PATRIARCHY)!

        3. Such problems evaporate with the obliteration of the self.

    5. But six months on she has had her title removed after organiser Rachael Bailey claimed she was shown footage of the model in boxer shorts.

      . . .

      “When Jai entered the competition, she said she was full time and she is not – she is a drag queen,”
      Rachael Bailey

      . . .

      The footage which made her change her mind showed Jai wearing a pair of boxer shorts.

      It also reportedly shows Jai working out at the gym in a T-shirt and shorts.

      Because women never wear boxers or workout in a T-shirt and shorts?

    6. I know women who wear boxers. I think it’s quite sexist to require they wear panties.

    1. Cheech. Chong. Cannabis. LSD. Thank the Boomers for making them popular.

  10. “We are debating if this specific, 400-page rule is workable.”

    No. It is unpossible. They’re expecting a level of control over restaurants that restaurants themselves cannot attain, in the aggregate. Two words, baby: portion control.

    Take Taco Bell. A national chain with a homogenized, controlled and effective training program, backed up with the chain-ubiquitous posters and repetition and stupid little mnemonics. They have weights for every item on the menu, and they’re supposed to weigh every fifth item. Portion control. Taco Bell chalupas weigh 5.5 ounces. If your outlet is habitually sending out chalupas that weigh 5.9 ounces, you are losing profit on food costs.

    Getting portion control correct is a major focus of every sensible restaurant in the nation, for this reason. Labor costs and food costs are the two biggest obstacles to profitability, and of the two, food costs inefficiencies are easier to correct. “Easier”, of course, not “easy”. It an ideal most work for – necessary for the bottom line as it is – and most will not attain. If a manager has one shift running pretty damned close to ideal, they count themselves fortunate.

    Now ask what that 5.9 ounce chalupa’s nutritional content is. It won’t be the same as the 5.5 chalupa, that’s for damned sure.

    If it were possible for restaurants to meet this ideal, they would have already done so. The nutritional information on restaurant items has never been more than a rough guideline. It’s all just nutritional theater.

    1. Do you think any of the rule-writing bureaucrats have ever stopped so low as to have worked in a fast food restaurant and then worked in a kitchen of a family-owned restaurant? The closest they came to that was spending a few hours in a soup kitchen folding napkins so they could put it on their college application.

    2. And what happens when you buy two 5.5 ounce chalupas? You think people who don’t intuitively know that anything Taco Bell sells is nutritionally deficient can do the necesssary math? “Your Honor, my client was informed that a chalupa had 610 calories but Taco Bell was criminally negligent in failing to inform him that a six-pack of chalupas contains rather more than that. We are requesting $1.5 million in punitive damages, plus legal fees, plus the cost of the forklift rental to get my client to the courthouse.”

        1. That is insane!

          A magazine calling itself ‘Organic Life’ publishing an article basically saying ‘its *your* responsibility to pay attention to the shit you’re shoveling into your mouth’? Truly the end-times are upon us. Soon lamb will lay with lion, the House of David will rise . . .

          1. The readers are resistant. Check out the poll results. The entire thing is one big facepalm. Although, that’s probably par for the course when a highlight of the lawsuit’s argument is that naming an entree “Moons Over My Hammy” erases agency.

            He lost the lawsuit and the appeal. Feel-good story of the year.

            1. Too bad I couldn’t read the rest of that because that guy sounded like a special kind of idiot.

          2. Are we boring you, Mr. Rodale?

          3. free range lamb.

    3. Ultimately, ObamaCare wasn’t about policy.

      Obama was voted in to make hope and change. Once started working on health care, he and his team realized that what they were doing would break the system, but by then, Obama had already gone on television to bully lawmakers into capitulation.

      There was a time when the Obama Administration pushed back against people calling it “ObamaCare”–because they knew it was a failure and the Obama people didn’t want it tied around Obama’s neck during his reelection campaign. It was already too late. The American people already associated it too strongly with Obama.

      At that point, the Obama Administration couldn’t let ObamaCare fail in Congress either because of what happened with HillaryCare. When the latter died in Congress, Hillary became a laughing stock–Americans hate losers, and losing in Congress would have made Obama seem like a loser in the minds of swing voters.

      So Obama had to do two things 1) Get ObamaCare passed so he doesn’t look like a loser. 2) Don’t let it take effect until after his reelection campaign.

    4. At no point after the legislation was proposed was any serious consideration given to the legislation by Democrats as to what the impact would be on our health or the economy. What we have in the legislation is the remnants of Obama’s wish list when it was first proposed to Congress. After that, the ACA was always about Obama calculating his reelection chances. Democrats in Congress voted for it for that reason, too. It passed without Republican support.

      So, ObamaCare contains a collection of rules that no one really wanted. It was just a defensive ploy to hide Obama’s embarrassing lack of intellectual capacity–and minimize the damage ObamaCare would do to his reelection chances in 2012. We hate to think about how so much suffering could be inflicted on so many people–just to avoid making the President seem as foolish as he is. But this is the way progressives make policy–and only stupid rednecks aren’t glad of it.

      1. Good points.

        It’s also interesting that progressives hate the insurance industry yet made a crony pact with it to implement their partial socialization of the healthcare industry. Yet another example of means justified by the ends, but more importantly it’s a peek under the hood at the communistic streak running through progressivism. Although they have very little understanding of complex systems (or, perhaps because of their lack of understanding), they are hell bent on controlling all major aspects of the national economy. This little truth is born out in this and other efforts to socialize the national economy.

        Progressivism is nothing more nor less than a modern rendition of socialism and should be identified as such as much as possible.

        1. “Although they have very little understanding of complex systems (or, perhaps because of their lack of understanding), they are hell bent on controlling all major aspects of the national economy.”

          Yeah, they have a hard time connecting their own actions with success and failure.

          I don’t know if that’s a psychological problem or a character flaw, or it may be that they just don’t care about success or failure as we think of it. They just care about what gets them reelected and what might get them more power.

          And ObamaCare will collapse. The only question is whether we go single payer when it does or move to something more market oriented.

      2. Hillary became a laughing stock (true) to the point of being close to becoming President.

        Explain how this happens.

        1. I never said I wasn’t thoroughly confused by the situation.

        2. That was nearly 24 years ago. Today’s college students weren’t born yet.

  11. Thank god the Republicans are in charge of congress! Austerity is hard, but necessary.

  12. “We are debating if this specific, 400-page rule is workable.”

    Well, Democratcare is a *2000*-page rule and it’s workable, right? RIGHT?!

    1. Apparently, “workability” increases in direct proportion to page count.

      This is a actually a true statement once “workability” is understood to mean “creating jobs for pubsec employees”.

      1. Well, yes. That’s how Common Sense works.

  13. This was on my local FB feed last night.

      1. Due Process? FUCK YOU!

        1. How is it not THEFT?

          1. How could the government steal? They own everything.

          2. Yeah, even if my car is towed at least I get it back. NYC could just fine the business if they really had to get their jackboot on.

          3. My last two words are the city’s answer to your question.

      2. What a waste!

        Why not collect the food, you know, and feed hungry people? It is one of Mayor de Blasio’s initiatives after all.

        How about not stealing it in the first place, slaver?

        1. Of course, if they collect the food and give it to people, they are refuting the justification for taking the food in the first place: namely, that food more than four feet from the store isn’t safe to eat.

      3. Bill de Blasio
        ?
        ?@BilldeBlasio

        Proud to attend tonight’s board meeting for @metcouncil, an impressive organization fighting hunger & poverty in NY

        While he throws good food in the trash.

        Bill, straight at you, you’re an asshole.

    1. Nothing to cut

    2. I have to wonder if the owner failed to pay off the fat cop.

  14. OT
    Google obeys the laws, socialist thugs are pissed:

    “Here’s how much money Google sent to Bermuda to avoid taxes”
    […]
    ” Google moved 10.7 billion euros ($12 billion) through the Netherlands to Bermuda in 2014, as part of a structure which allows it to earn most of its foreign income tax free….”
    http://www.businessinsider.com…..014-2016-2

    The NERVE! Why they might use that to develop new products instead of paying Euro-trash to sit around all day!

    1. The Queen of England, the Sultan of Brunei, the Emperor of Japan and most of the population of the planet uses the same sort of legal technicality to avoid paying the IRS their fair share of taxes. All them damn foreigners using this one weird tax dodge – I say close the loopholes!

      1. What about that box on your W2 that asks you to put in tips? So my question is, say someone is a server at a restaurant and they’re supposed to write in unreported tips in that box. Does anyone ever do that?

        I think this is the equivalent of the question we sometimes ask to those progs who are always shrieking about people who don’t want to pay there fair share ‘Did you know you can pay voluntary taxes in excess of the amount you owe? Do you ever do that, just write the IRS a big fat check to ensure you’re paying your fair share?’. Has anyone ever done that?

  15. Look, congress has to do something. For your own good. And for the children.

    We need labels on those little packs of silica gel inside vitamins and medications to tell people not to eat them. The problem is that politicians think everyone else is as dumb as they are and feel an overwhelming need to tell everyone else what to do. This is a bad combination.

    1. I don’t know about the silica gel packs but I do remember reading somewhere (no clue where now) that virtually every warning label, no matter how bizarre, existed because someone had once done (or tried to do) that which the warning label told you not to do.

    2. Everyone else *is* as dumb as they are. That’s why they keep getting re-elected. And why idiots eat the silica and then sue – because apparently being a moron is like being black, its just something that you are and you can’t change it so you should never be penalized for constantly living one careless moment away from a Darwin Award.

    3. If they want to “do something”, how about mass seppuku?

    1. NEEDZ MOAR HUCKABEE!!1!

    2. I wonder if any of that is fake?

      1. I mean someone once told me that wrasslin is fake too.

        1. Thor’s kids didn’t know that.

          Side note: if Bernie somehow wins, will David end up on SNL full time? He’ll almost have to since I’m pretty sure those two were separated at birth.

          1. Careful, Sloop, you’re venturing into Irish’s territory claiming old Jewish guys all look and sound the same.

            :-p

            1. Just so I don’t get accused of stereotyping, I’ll make it clear that only tthe ones from New York do.

              1. TOO MUCH TUNA!!!

    3. I’ve seen that before. Such violence

    4. Does the Pope think they are Christians ?

  16. Next step. No menu items over 300 calories allowed.

    1. “Other than *that*, have it *your* way!”

      1. If you like it your way, you can keep your way.

    2. “I’d like 30 mini0cheeseburgers please.”

      “Sir, you *know* its illegal to structure your order to get around maximum calorie mandates!”

      1. “According to my accountant, I have 5 milkshake deductions I didn’t claim, now gimme my miniburgers”

      2. Then if you go to multiple restaurants on the same day to avoid the limits, you’ll be charged with ‘food shopping’

  17. I thought Federal Law now required us to call “them” Vichy Fries.

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  21. Critics of mandatory calorie labeling, including me, have argued for years that menu-labeling provisions, including those adopted by the FDA, are rigid, overly inclusive, overly burdensome, pointless, and counterproductive.
    For example, research indicates mandatory menu labeling may not just be ineffective, but also counterproductive.

    I don’t think “counterproductive” makes for a great libertarian argument. “It’s better for the peasants when we don’t give them information.” Um, no.

  22. OT: Im convinced our philosophy decends from stoicism. This thing is 3000 years old. From zeon, seneca, and cicero to hayek, friedman, and nozick. It seems its had its time to brew. It will never be accepted. However, Abraham Lincoln was a stoic, for proof just read the gettysburgh address. Exceptional people are required to produce freedom and they will not exist in our life time.

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  27. This is so much BS. Calorie counts were introduced on packaged foods decades ago. Entropy did not ensue. The world did not spin down into disorder.

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