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10.01.2015
Wonder of wonders, the FDA at last has issued its Final Guidance on Menu Labeling to go into effect a year from now. President Obama signs the Affordable Care Act which includes a provision requiring chain retail food establishments with 20 or more locations to provide calorie information for standard menu items. Yesterday, the FDA announced a delay in implementation of menu labeling until December 1, 2016.
Since the FDA issued the menu labeling final rule on December 1, 2014, the agency has had extensive dialogue with chain restaurants, covered grocery stores and other covered businesses, and answered numerous questions on how the rule can be implemented in specific situations. The seemingly endless delays look like successful lobbying at the expense of consumers and public health.
This is a huge victory for the restaurant lobbyists,” said Marion Nestle, a professor in the department of nutrition, food studies and public health at New York University.
FDA’s delay confirms both the serious deficiencies in the final rules and the urgent need for enactment of the bipartisan Common Sense Nutrition Disclosure Act (H.R. If you can’t get federal agencies to back off on public health, go right to Congress.
Although this act is not yet passed and it’s not clear whether this provision would have survived, the FDA got the message (or maybe the White House made sure that it did?). The ferocity of lobbying on this idea suggests that restaurant companies would rather you did not have this information. A study just published in the American Journal of Public Health demonstrates some benefits from menu labeling.
In 2009, a year after New York City, Seattle required calorie labeling on the menus of restaurants. Menu labeling went national when President Obama signed the Affordable Care Act in 2010.  It’s taken the FDA this long to get the rules out. In the meantime, evaluations of New York City’s policies and now Seattle’s continue to show some benefits—at least among people who look at the labeling.
As I keep saying, calorie labeling most definitely affects my menu choices, but I tend to look at such things. Several readers alerted me to a Reuters article about the FDA’s “lost pleasure” analysis of the effects of the new menu labeling rules. The lost-pleasure analysis, which is criticized by some leading economists and public health groups, was tucked into new regulations published last month by the U.S. I searched the FDA’s Federal Register notice but could not find the word “pleasure” anywhere in it. If consumers respond to this information [calorie labels] by reducing consumption there will be a loss in consumer welfare associated with substitution away from certain food…We acknowledge that the reduction in consumer surplus, as a proportion of gross benefits, could range from 0 to 100 percent.


I did not have a good answer to that question then, and I still don’t, other than suggesting that the pleasures of health easily compensate for those costs. The only exceptions: foods from grocery stores or delis that require additional preparation such as deli meats, cheeses, or large deli salads. When the FDA first proposed the regs in April 2011, it excluded movie theaters and other places whose primary purpose is not to sell food. The National Grocers Association and other retailers who sell prepared foods fought for exclusion. Center for Science in the Interest (CSPI), which has led the menu labeling efforts, is understandably pleased. The National Restaurant Association has pressed for national regulations to make the rules consistent across the country. We joined forces with more than 70 public health and stakeholder groups to advocate for a federal nutrition standard so that anyone dining out can have clear, easy-to-use nutrition information at the point of ordering – information that is presented in the same way, no matter what part of the country. From Portland, Oregon to Portland, Maine, diners in restaurants will have a new tool to help them make choices that are right for them. It’s been 4 years since President Obama signed the Affordable Care Act authorizing menu labels to go national.
The rumors I’m hearing say they are being held up by the White House Office of Management and Budget. I complained about the delay again four months ago, when rumors suggested that it was due to pressures from owners of pizza chains and movie theaters.
It was three months ago today that the White House first received FDA’s final rules for calorie labels on menus and vending machines, and by the Office of Management and budget’s own rules, that means time is up. In 2010, President signed national menu labeling into law as part of the Affordable Care Act.  The FDA proposed rules for labels in 2011, collected comments on the proposed rules, missed the July 3, 2014 deadline for issuing them, and by all reports sent them to the White House Office of Management and Budget last April.
The delay on releasing the final rules is widely reported to be due to lobbying efforts by industry groups. The Food Marketing Institute (FMI), the National Grocers Association (NGA) and Food Industry Association Executives (FIAE) held a lobbying “fly-in” to prevent FDA’s final menu labeling rule for calorie disclosures being extended to grocery stores. A bill backed by the supermarket industry is the Common Sense Nutrition Disclosure Act (H.R. A CDC study reports that nearly all adults say they notice menu calorie labels, but only 57% say they use them.
Research on the effectiveness of menu labeling has yielded mixed results and more research is needed, says a review published by the Robert Wood Johnson Foundation.
One recent study says menu labeling has little influence on calories ordered regardless of how overweight people are. Menu labeling raises ethical issues related to population health and social equity, says another study.


At the moment, studies of the effects of menu labeling are restricted to laboratory models or situations in New York and other cities that passed such laws within the last few years. USDA has a report out on consumers’ use of nutrition information in restaurants before the menu labeling law goes into effect. What law?  The menu-labeling provision that is part of the Affordable Care Act still—four years later—waiting for the FDA to get around to issuing final rules (I last wrote about this in April 2013). Rumors are that the FDA is under pressure from pizza chains and movie theaters to be exempt from the final rules, and that the White House is holding them up. These results explain much about the confusing findings from studies of New York City’s menu labeling law. I will be participating in a conference on “Agriculture: Exploring the Fields of Tomorrow,” sponsored by the agricultural investment firm, Unigrains. Industry, trade and other associations, including the grocery industry, have asked for an additional year to comply with the menu labeling final rule, beyond the original December 2015 compliance date. 1, 2015 implementation date, especially as some industry groups continue to push Congress to narrow the impact of the Affordable Care Act mandate so it doesn’t apply to grocery stores and movie theaters along with restaurant chains. Interagency review at OMB is supposed to take no more than 90 days before the final release of a measure, though that timeframe is often extended with little explanation on more controversial initiatives.
The FDA agrees additional time is necessary for the agency to provide further clarifying guidance to help facilitate efficient compliance across all covered businesses and for covered establishments to come into compliance with the final rule. None of the funds made available by this Act may be used to implement, administer, or enforce the final rule entitled ‘‘Food Labeling; Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments’’ published by the Food and Drug Administration in the Federal Register on December 1, 24 2014 (79 Fed.
Amit Narang, an attorney at Public Citizen, said the lost pleasure calculation could help companies or trade groups to challenge the menu rule in court.
While OMB is always mum on its schedule for rule reviews and releases, the end of the standard review period is sometimes a hint that something will be coming, if not today — the day before a long weekend — then soon. 1756) which would require menu labeling only for establishments where the majority of business is derived from restaurant-type food. The FDA is extending the compliance date for the menu labeling rule to December 1, 2016, for those covered by the rule.



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