One of Barack Obama’s top food policy rules has escaped Donald Trump’s war on regulations.
Starting Monday, calorie counts will have to be posted at thousands of restaurants, grocery stores and movie theaters, representing a milestone change in how the food industry shares information with the American public. The rule, an oft-forgotten provision of Obamacare, is being pushed over the finish line by a Trump nominee, FDA Commissioner Scott Gottlieb, who says the labeling requirement is simply about transparency.
“I do not see these nutrition issues as a right-versus-left issue,” Gottlieb told POLITICO, noting that the obesity epidemic is a serious – and worsening – public health problem. “Using information as a vehicle to try to inspire competition is a conservative notion.”
“I’m quite sure that a lot of conservatives, including myself, have turned over packages in stores to look at the calorie information and the nutrition information and appreciate that that information is there,” he said.
Posting calorie information on menus, he said, is really just an extension of that concept.
The rule means that everything from the jumbo buttery popcorn at the movies to the taquitos sold at 7-Eleven and Starbucks’ mocha grandes will have to show calorie counts right on the menu. Many restaurant chains support and are already complying with the new rule, including Dunkin’ Donuts, Starbucks, Panera and McDonald’s.
Public health advocates are heartened that after years of delays, many of them related to intense pressure from some corners of the food industry, the rule is kicking in – eight years after Congress asked for it.
Still, some conservatives see the hand of Big Government at work.
“It’s another one of these nanny-state regulations that’s designed to solve a problem that isn’t really a problem at all,” said Andrew Puzder, the CEO of Carl’s Jr. who was Trump’s first labor secretary choice, when the FDA first issued its rule in 2011.
Some grumble about the agency’s stance on this and other nutrition issues, which they see as out of step with the administration’s pledge to be more pro-business. On top of locking in menu labeling, FDA is moving forward on an update to nutrition labels championed by former first lady Michelle Obama, as well as on voluntary sodium reduction targets, which is hugely controversial to some processed food interests.
“Everyone thought there was going to be a big reprieve,” said one industry consultant, recalling the onslaught of nutrition regulations during the Obama years. “There’s just not.”
The menu labeling rule, which was finalized in 2014 after repeated delays during the Obama administration, applies to chains with 20 or more locations that sell prepared foods similar to what you might get in a restaurant – a definition that applies to everything from appetizers to beer and wine listed by the glass. Businesses are supposed to post calories for each food on their menu right where a consumer will see it as they decide what to order.
The restaurant industry had lobbied for a federal regulation on calorie labeling, primarily as a way to avoid the patchwork of state and local laws being passed across the country. The National Restaurant Association and the Center for Science in the Public Interest, which had pushed menu labeling at the local level, eventually teamed up to get it slipped into the Affordable Care Act. The provision was championed by Sens. Lisa Murkowski (R-Alaska), Tom Harkin (D-Iowa) and Tom Carper (D-Del.) and, on the House side, by Rep. Rosa DeLauro (D-Conn.).
While the policy was decidedly bipartisan, it eventually became associated with the Obama administration’s aggressive nutrition agenda – and cast by some as overreach. Last year, the New York Post’s editorial board slammed the whole concept under the headline: “ObamaCare’s pointless war on pizza.”
The rule has been delayed repeatedly over the years, as pizza companies, convenience stores and other business groups at various points have tried to get out of being covered – arguing it would be costly and burdensome to comply.
Retailers and pizza companies are no longer outright opposed to the rule, but many want to see the regulation relaxed. They’ve backed legislation in the House and Senate that would allow pizza chains to post nutrition information online, instead of on their menus, and give companies more protection from liability and lawsuits. The bill has twice passed the House but not gotten traction in the Senate.
"We still think that there are areas that need to be fixed," said Jennifer Hatcher, chief public policy officer and senior vice president of government affairs at the Food Marketing Institute, which represents major retailers. She said she’s hopeful Congress will still intervene after the rule takes effect.
Domino’s Pizza, which has lobbied for years to relax the rules, made an unsuccessful last-ditch effort to scuttle the May 7 deadline, meeting with officials across the administration and Capitol Hill.
The company, which leads the American Pizza Community, a group of pizza chains opposed to much of the regulation, contends that it’s not against disclosure, it just doesn’t want to post the information on store menus, when the vast majority of customers are ordering online or by telephone.
“This has never been about us trying to get out of anything,” said Tim McIntyre, chairman of the pizza trade group, who’s also a communications executive at Domino’s.
The company currently offers calorie information online – not on its menu, but on the checkout page where a customer is reviewing the purchase.
“We believe that’s the decision point,” McIntyre said.
The National Restaurant Association has aggressively lobbied to keep all businesses selling restaurant-like foods under the rule, so their members aren’t competing against a business across the street that doesn’t have to post calorie counts. A lot of restaurants are not crazy about the idea of letting pizza chains only post information online and not in-store.
“The opposition to that piece comes from the companies who have been labeling for a number of years,” said Cicely Simpson, executive vice president of public affairs for the restaurant group.
"It’s already up in our restaurants – why can’t everybody else do the same?" she said.
Gottlieb argued the FDA has gone to great lengths to respond to legitimate concerns from industry groups, including retailers and pizza chains. The agency delayed the rule from taking effect last May – though it was so close to the compliance deadline that many businesses had already ordered and put up their menus. It has since offered businesses more flexible options in how they display calorie information.
“I wanted to do this in a thoughtful way so it would be maximally beneficial for consumers but done in a way that restaurants could comply in a constructive fashion,” Gottlieb said.
FDA sees menu labeling as one way to chip away at the worsening obesity epidemic, which is a major driver of health care costs and lost productivity. The agency this week cited studies showing that “smart menu labeling” can lead customers to reduce the number of calories they order by an average of 30 to 50 calories.
That may sound small, but public health experts argue that small changes add up. Over a year, that small tweak could help someone lose between three and five pounds – something the agency touted this week in a blog post that promoted menu labeling as “pro-market."
Research on the impact of menu labeling shows conflicting results. Some studies have found that it helps people choose fewer calories, but others have found no significant effect on consumption. But there’s also now evidence that restaurants and food-makers dial down their calories on their own if they know they have to post calories – a stealth change that could nudge consumers toward fewer calories even if they don’t change their ordering habits.
Margo Wootan, vice president for nutrition at the Center for Science in the Public Interest, who’s worked on menu labeling for more than 15 years, is hopeful the nudge toward even a small cut in calories will have an impact.
“It’s not the cure for obesity, but it’s a terrific, low-cost step forward,” she said.
“I’ve been surprised time and time again of how the calories stack up in restaurants and how easy it is to cut hundreds of calories without sacrifice,” Wootan said, pointing to one counterintuitive example. A 6-inch tuna salad sandwich at Subway, which might appeal to consumers as a lighter option, has 470 calories, but the same size roast beef sandwich will run you 320 calories – almost 50 percent fewer.
“This is a really visible example of public health at its best,” Wootan said.