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Is Counting Calories a Cost or a Benefit?

This month, food industry trade groups called on the Food & Drug Administration to halt its new food labeling law requiring food establishments to publish the calorie content of menu items.

Organizations like the National Grocers Association (NGA) and the National Association of Convenience Stores (NACS) continue to argue against the law. The major reason: costs. Not only the costs they’ll incur to implement it, but the long-term costs to remain compliant may be even higher. And research continues to show that menu labeling does not change consumer behavior.

Background on the Law

Seven years ago, the menu labeling law was passed as part of the Affordable Care Act (ACA), and the FDA has been working on the details ever since. It’s been a rocky road. While the requirements were set to go into effect last fall, after food organizations lobbied against the bill, the FDA agreed to delay the requirements until May 2017.

Now, these organizations want to delay the implementation of the law with hopes that the FDA will reconsider. Their latest petition against the law cites four reasons the FDA should delay implementing the law – or even reconsider it:

  1. The FDA hasn’t provided enough information for businesses to comply.

  2. The final rule is more expansive than the original ACA requirement.

  3. The rule violates the First Amendment by requiring restaurants to publish calorie information.

  4. Implementation costs are enormous, and grossly underestimated by the law.

High Costs

There’s a dispute about how much it will cost food establishments to implement the law. The FDA estimates that the law will cost $1 billion over 10 years, but trade organizations argue that $1 billion will be spent on the initial implementation alone. These implementation costs include analyzing the nutritional information for each menu item, and rewriting all restaurant menus.

Food establishments also have additional reasons to reject the law because the initial implementation costs are only a fraction of what they might spend on continued compliance. Publishing the calorie information on menus requires several expensive steps.

Restaurants must standardize their menu items and ingredients: A burger cannot be eight ounces one day and 10 ounces the next. For the published calorie information to remain accurate, serving size must be standardized.

Food establishments must determine the calorie information: Once food establishments standardize their menus, they must have a nutritional analysis for each menu item. Then, if a restaurant wants to add a new appetizer or make a seasonal menu change, it will be forced to repeat the process.

Food establishments will need consistent products from suppliers: A new salad dressing or ketchup supplier might change the posted calorie information for menu items. This could force a restaurant to start the process all over again, and potentially pay for new menus nationwide.

High costs aren’t the only reason for food establishments to oppose the menu labeling law. They have other data to question its benefits.

Are the Added Costs Worth It?

The purpose of the law was “to assist consumers in maintaining healthy dietary practices.” Has it worked?

Studies continue to show that consumers don’t eat healthier foods based on posted calorie content. States like New York and cities like Seattle have already passed similar menu labeling laws, providing microcosms of what might happen at the national level. The results were not impressive: In New York and Seattle, people’s purchasing habits changed only slightly after menu labeling became mandatory, and the effect wore off after a few months.

This result shouldn’t be surprising. For almost three decades, grocery items have had calorie content listed on labels based on the requirements of the Nutrition Labeling and Education Act of 1990. That act requires that all packaged food must bear a standard nutrition label, which includes calorie content.

Despite this law, Americans eat more today than ever before. Recent research estimates that Americans consume 23 percent more calories a day than they did in the 1970s – before labels were required to include nutritional information.

The NGA and NACS have voiced several concerns about the menu labeling requirements, but there are additional reasons for the FDA to reconsider how it implements the law. The costs for food establishments are significant, and who is likely to ultimately bear those costs? The consumer who is unlikely to change behavior based on the labels.

© 2022 ArentFox Schiff LLPNational Law Review, Volume VII, Number 114

About this Author

The Schiff Hardin Product Liability and Mass Torts Group comprises 40 lawyers — in New York, Washington, D.C., Chicago, Atlanta and San Francisco — solely devoted to helping clients face bet-the-company litigation against some of the most well-financed and formidable plaintiffs’ lawyers in the United States. Our lawyers try and win cases in some of the most plaintiff-friendly and inhospitable jurisdictions in the country, and when our clients ask us to create an exit strategy, we are equally adept at negotiating cutting-edge solutions to eliminate product liability and...