By Celia Wexler, Union of Concerned Scientists
Just in time for Valentine’s Day, the House of Representatives on February 12 sent a calorie-laden heart-shaped pizza to Big Pizza, particularly Domino’s Pizza. It passed a bill, with an Orwellian title the House leadership loves, the Common Sense Nutrition Disclosure Act. The bill is designed to undermine a truly common-sense regulation that the Food and Drug Administration has been working on for years to ensure that consumers have access to understandable information about the calorie content of restaurant menu items.
The reason this House-passed bill should raise alarms is that it so clearly demonstrates how attacks on science-informed regulations aren’t always about the big bills designed to entirely upend the regulatory process and hamstring all federal agencies.
Other battles are more targeted, small guerrilla-style attacks that in fighting one regulation also include damaging provisions that could set the table for broader regulatory attacks. This tactic also includes the misinformation that is part and parcel of these regulatory attacks.
House Majority Leader Kevin McCarthy called the passage of the bill a victory for all the small sandwich shop owners in America. But the FDA wasn’t about to impose labeling requirements on “Mom and Pop” sandwich shops. Its mandatory labeling requirement applies to food operations that include 20 retail outlets or more, including grocery store delis, convenience stores, and movie theaters. At chain food outlets, you don’t have artisanal cooking going on. For the most part, you have consumers ordering from a set menu.
In its explanation of the rule, the FDA observes that this country now faces an epidemic of diabetes and other diseases that are linked to obesity, and that Americans now consume about one-third of their calories outside the home. The FDA rule required that consumers be informed about how many calories are in the food they consume away from home.
This is not a radical idea. It was mandated by the Affordable Care Act, and will help the nation hold down healthcare costs and reduce the incidence of chronic disease. In many parts of the country, including New York City, food outlets already have menu labeling requirements.
Public health advocates endorsed the FDA rule, noting that calorie labeling was supported by 80 percent of Americans, and that more information “would allow people to make their own, informed choices about how many calories to eat at a time when obesity rates are at a record high.”
Some studies show that consumers are likely to eat fewer calories if they have this information. There also is some evidence that, after they post their calories, companies voluntarily find ways to make their recipes healthier.
The National Restaurant Association thought this was a good idea, ensuring that all the major players were following the same rules. Also supporting the FDA rules were Dunkin’ Donuts and Baskin Robbins. Many big-name chains like McDonald’s already do this, and more.
But many grocery and convenience stores disagreed. A huge part of the opposition came from “Big Pizza.” Major campaign contributor Domino’s got its dough in a knot over this. It made the absurd contention that since pizza comes in all different combinations, an estimated 34 million of them, that it would be nearly impossible to estimate calories.
34 million? Oh please. Like all the other pizza chains, Domino’s has a menu of pizza standards. Those pizzas, routinely on the menu, would be subject to nutrition labeling, not every possible variation of pizza, although certainly it would be in the realm of the possible to list the calories contained in pizza toppings.
The idea that franchise owners of fast-food places must devote lots of manpower to figuring out caloric values is preposterous. Franchisees get their ingredients and specific instructions about how to mix those ingredients, from the franchise. That’s why a McDonald’s burger in Texas tastes the same as one in D.C. or Chicago.
House supporters of the bill were touting wildly inflated cost estimates per store. But the Center for Science in the Public Interest estimates that costs of the menu analysis would be about $45,000 per chain, not store.
There was a two-stage opposition to the menu labeling rule. The first successful step was to pressure the FDA to delay its implementation date by a full year, giving food outlets covered by the rule until the end of 2016 to comply.
But delay wasn’t enough. The next step was to sabotage the FDA’s work altogether. Enter the Common Sense Nutrition Disclosure Act.
Here’s what this bill does, or should I say, undoes. The FDA wants restaurants to tell us how many calories are contained in one standard menu item. That’s pretty straightforward. I buy a McDonald’s Big Mac; McDonald’s tells me how many calories I’m consuming.
But this bill will let food outlets play games. They can decide that a “serving” is actually one-half a sandwich or a very small slice of pizza, so that if a consumer is not reading carefully, it will be easy to assume that the sandwich I’m enjoying is only 375 calories, when in truth, I’m packing in 750 calories.
Also, food outlets covered by the House bill would not have to give equal access to information to all customers. If more than half of customers ordered their food remotely and then picked it up, a retail outlet would only have to provide the calorie information online. No information would be provided to walk-ins.
And the bill weakens any attempts to enforce the regulation.
It eliminates any requirement that a business certifies to the FDA, in writing, that it is complying with the regulation. And if this were not bad enough, there is an additional, sneaky language in the bill that not only affects federal efforts to require calorie information but also state efforts. Many states and cities already have taken the lead in menu labeling requirements. But regardless of what these elected officials may have permitted in their own regulations, the House-passed bill exempts all food outlets subject to any of these labeling requirements from being sued by citizens for non-compliance. There will be no way for citizens to hold any business accountable, no matter how flagrant the violation.
And once the FDA imposes its federal menu labeling requirements, this bill also forecloses any opportunity for states to ask the FDA to permit them to impose more expansive disclosure laws on the food establishments covered by this regulation. (It was a small window of opportunity for states, but this bill would close it entirely.)
One can see this type of language silently making its way into other regulatory bills, undercutting state and local governments before they even have a chance to protest.
This bill would muddle all the FDA’s careful rulemaking, and would delay any final regulation from taking effect by at least two more years. The Congressional Budget Office estimates that the extra work will set the menu rule back by several years and cost the FDA $9 million!
But what is really unjust about these House shenanigans is the people who will be the primary victims. Not I, and likely not most of you. We may patronize places like Panera or Au Bon Pain, which cater to people with a bit of disposable income who live in the suburbs or affluent city neighborhoods. They are not in the inner city. These outlets already are providing nutrition information.
The people who end up paying the price when our elected officials shape the rules to shield certain corporations are low-income families, many of them people of color, whose health is already compromised because they live in food deserts, and have less disposable income to buy fresh fruit and vegetables. The few options they do have to select relatively healthier food should not be sabotaged by special interests.
Obesity is an epidemic in this country, but it is striking people of color even more. Diseases linked to obesity like diabetes are two times more likely to occur in black adults than white adults. Pretending this labeling requirement is some huge burden on large companies is a distraction. Not labeling burdens real people, by hiding information they need to make their own choices.