Nanny State

FDA Pushing Forward with Terrible Menu-Labeling Rules

Commissioner Scott Gottlieb applauds the agency's unfortunate mandate and promises clear guidance by the end of the year.

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Joao Virissimo | Dreamstime

The Food and Drug Administration (FDA) has announced the agency will forge ahead with implementing the Obama administration's costly, misguided, pointless, reckless, and potentially unconstitutional menu-labeling rules.

"As a doctor, father[,] and the head of the U.S. Food & Drug Administration, I believe that everyone is entitled to the information they need to make informed decisions about the food they eat," FDA Commissioner Scott Gottlieb said in a statement earlier this week. "We serve as the nation's expert on food labeling, which is why Congress entrusted us with the responsibility of crafting predictable, uniform federal standards that will benefit the health of families across America by ensuring access to essential calorie and nutrition information on food and menu labels."

I will give Gottlieb that he's a doctor, father, and the head of the FDA. After that, the facts become murky. For example, if the FDA were indeed "the nation's expert on food labeling," as Gottlieb claims, one way the agency might demonstrate that expertise is by not forcing America's food manufacturers to change their food labels every couple years.

Nevertheless, Gottlieb's rationale about Americans' nebulous entitlement to information is predictably familiar. It's been trumpeted in recent years by those who support mandatory labeling of genetically modified (GMO) foods, mandatory "added sugar" labeling, mandatory trans fat labeling, and pretty much every other potential food-labeling requirement under the sun.

So what's wrong with mandatory menu labeling? For one, as Politico reported this week in a piece on the FDA's menu labeling plans, there's some debate over its effectiveness.

"[E]vidence on whether it works is mixed," Politico notes. "Some studies have found that it helps certain individuals, especially women, eat slightly fewer calories, but others have found no effect."

I wish Politico had also reported perhaps the most significant evidence around menu labeling: Its very basis is a ruse. Research has shown mandatory menu labeling doesn't help most people choose to eat fewer calories, and may in fact push people to eat more calories.

"Who cares about calories?" asked a 2013 NBC News headline. "Restaurant menu labels don't work, study shows."

"[A]t no time did the labels lead to a reduction in the calories of what diners ordered," the New York Times reported in 2015. "Even if people noticed the calorie counts, they did not change their behavior."

Estimates of the escalating costs of complying with the FDA rules is another reason to hate the rules. A new study by the National Association of Convenience Stores (NACS), estimates the regulations will cost its members more than $84 million each year.

"The way the FDA rule is written makes it virtually impossible for businesses to comply with the regulations even though they will spend billions over the next several years trying to do so," says economist David Zorn, who authored the NACS study.

Compliance costs for the entire food industry are estimated to run somewhere north of $300 million per year.

Even with all those costs, attempting to comply with the rules may prove futile. As I wrote earlier this summer, complying with these rules may be somewhere between difficult and impossible for many food sellers.

Take, for example, pizza-delivery outfits like Domino's.

"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," said Lynn Liddle, who chairs the American Pizza Community, a coalition representing much of the American pizza industry, in an email to me in 2013.

If menu labeling is costly, impossible, and ineffective—something I've written time and again—then why doesn't the FDA just scrap the plan altogether? The truth is that the issue is largely out of the agency's hands. Congress passed a law that requires the FDA to develop menu-labeling rules as part of the Affordable Care Act.

"Unfortunately, the FDA does have to issue a rule of some kind, thanks to Congress," says Daren Bakst, research fellow in agricultural policy with the Heritage Foundation, in an email to me this week. "To address the menu labeling requirement, Congress needs to take action to repeal this provision that was in Obamacare."

So Gottlieb's hands are largely tied. Earlier this summer, I wrote that a few options for delaying or scrapping the rules were still available.

"Congress could act by repealing or amending the menu-labeling rules," I wrote. "Or food sellers whose First Amendment rights would be violated by rules that compel speech for no constitutionally supported reason could ask a court to halt implementation of the rules. Or the FDA could delay the rules from taking effect."

While the latter has happened numerous times, Gottlieb says those delays have an expiration date. In his announcement, Gottlieb says the agency "will provide additional, practical guidance on the menu labeling requirements by the end of this year."

Bakst, of the Heritage Foundation, isn't optimistic. He tells me the whole premise underlying the FDA menu-labeling rules "is based on the idea that the public is ignorant and needs the federal government to help influence their dietary choices; this is effectively what the FDA itself wrote during the rulemaking process. The level of arrogance of this thinking is amazing."

He's right. And that arrogance is one that's simply carried over from the Obama administration to the current administration.