In late November, the FDA finalized new rules for calorie counts on menus. In about a year, all food establishments with over twenty locations will need to post the calories of regular items directly on the menu. Other nutrition facts must be available on request. In about two years, vending machine companies owning more than twenty machines will need to display a poster listing items’ calories. When the rules were released, few of the responses were shocking. The Center for Science in the Public Interest described the rules as “the culmination of a decade-long movement for better nutrition.” Fox Business hosts called the rules “a little bit ludicrous.” Is “Obamacare affecting what you eat now?” asked Fox host Charles Payne. The Chicago Tribune editorialized that calorie counts are the “nanny state” at work. Media voices are portraying the calorie counts as a battle between public health and personal freedom, just as they did with smoking regulations, jumbo soda rules, and bans on trans fats.
Unlike those other measures, though, there is basically nothing about these FDA rules that actually involves making even tiny sacrifices of personal freedoms. The rules are pretty reasonable, and they should come as no surprise to retailers. Section 4205 of the Affordable Care Act of 2010 says that retail food establishments with twenty or more locations need to post calorie counts. So while the rules have been debated in the last few years, this is not a new move. And to clarify the major concerns people are having about the law: it does not affect small businesses and it does not apply to seasonal specials. Sure, Jezebel said the calorie counts would “ruin your Cheesecake Factory run,” but that is the extent of it. No options are taken away. There is no fat shaming built into the rules — in fact, there is no explicit mention of the problematic “obesity crisis.” It is not especially moralistic, compared with the Let’s Move focus on obesity (and its circular argument that children should lose weight to avoid “social discrimination”). It is also a universal policy — that is, health policy aimed at anyone who eats at chain restaurants. An article in The Atlantic recently argued that calorie counts do nothing for those with the biggest “obesity” problem — low-income women, especially low-income women of color. The article tried to be sympathetic to low-income women, but ended up mildly insulting instead. It missed that there is no shortage of food rules and nutrition education already attached to social welfare programs like SNAP (formerly Food Stamps) and the Women, Infants, and Children (WIC) Program. Nutrition policy that does not single out those consumers with extra rules is a remarkably egalitarian move. For the average consumer it is a clear win: more mindful eating if you want it and something to ignore if you do not.
The only folks who seem to truly dislike the new rules are those segments of the food industry who desperately fought their inclusion in the policy. The National Restaurant Association lobbyists sat at the negotiating table. Knowing the regulations were inevitable, they wanted to have a say in the specifics. They also wanted a national rule that would prevent a situation much like what happened when New York City developed its own labeling standards — a logistical nightmare for big chains. Alongside them were McDonald’s, the grocery store Wegmans, and the American Heart Association. The holdouts opposing the change are the industry groups that claimed the ACA wanted calorie counts in restaurants, and that their businesses — movie theaters, amusement parks, supermarkets selling prepared foods, and chains that list alcoholic beverages on the menu — were not restaurants (pizza restaurants, which by definition are actually restaurants, had also long insisted pizza was too complicated an item for menu calorie counts). These are the voices saying calorie labeling would be expensive and ineffective, the ones characterizing the rules as “regulatory overreach.” Most likely, these groups will sue to hold up (and perhaps change) the regulations.
If all goes according to plan, we will see calories on menus nationwide within one year. All is unlikely to go according to plan, however, and calorie counts are likely to reach federal courts faster than food courts. And that is not good for us, the consuming public.
To understand why the outcome matters, consider the 1977 battle between food lobbyists and a Congressional committee. Congress formed the Select Committee on Nutrition and Human Needs as a response to Robert Kennedy’s “discovery” of rural hunger in the late-1960s. The Committee, chaired by George McGovern, shifted gears by the mid-1970s to focus on American overeating. In those years, McGovern’s Committee (as it was nicknamed) held hearings on sugar, salt, meat, and artificial sweeteners. The Select Committee’s 1977 report on American health, Dietary Goals for the United States, recommended food labeling, rules for food advertising, and financial support for national nutrition education.1 They also, infamously, suggested Americans “eat less” or “decrease” consumption of certain foods.2
Dietary Goals was not legislation. The McGovern Committee suggested further regulation, but it did not provide any. Some food industry representatives, however, still freaked out. The Salt Institute said that recommendations to decrease salt intake might “very well work against the committee’s aim of getting people to eat good diets…since it may leave those foods less palatable.”3 Instead, Americans should just be encouraged to “exercise reasonable prudence in salt consumption.” The International Sugar Research Foundation (the sugar industry lobbying group at the time), the National Dairy Council, and the National Canners Association all made similar statements. The meat lobbyists hit back hardest on the recommendations that Americans eat less meat. As a result, the committee re-wrote its guidelines to say Americans should “choose meat, poultry and fish which will reduce saturated fat intake.”4 Revisions hardly mattered, though, since the ten-year-old Senate select committee had already been disassembled. As part of larger committee reorganizing, the committee was shrunk dramatically and transformed into an agricultural subcommittee. In this new position, it would not be able to cause so much trouble for food industry lobbyists. Dietary Goals prompted a national conversation on nutrition, disease, and the role of the state in these matters. It did not, however, lead to the nutrition education, food labeling, or advertising regulations it set out to tackle.
In 1977, the food lobbyists won. Who will win in 2014?
Calories on menus will not solve any public health problem. They may or may not actually change how people eat — there is no consensus on the matter. Calories are also only one component of nutrition data, and not necessarily the most useful. I actually agree with those who argue food quality is more important than calories — but the point is to provide a unit that makes as much sense as possible to the average consumer. The rules require restaurants to have much of that additional data available in pamphlet or poster form. Only calories will make the menu, though, since an information dump only overwhelms consumers.
With all of these caveats, a win for calories on menus might not seem like a very big deal. In some important ways — like how much it will inconvenience you — it is not. As a symbolic win, though, it is quite something. The FDA menu regulations are a rare example of the federal government standing up for American health, and standing against uncooperative industry lobbyists. Additionally, as I mentioned above, it is unusual for health policy measures to target all Americans. Low-income Americans, especially relief clients, are used to measures that target their health, but that would be “government overreach” were they applied to larger (wealthier, whiter) populations. The year after McGovern’s Dietary Goals crashed and burned, nutrition education became a mandatory part of the Women, Infants, and Children’s Program. Nutrition education itself is not a problem, but unevenly instituted health policy is. Menu calorie counts, on the other hand, are health policy that will be applied across the board. It is unobtrusive policy, yet it is equitable policy, and it helps Americans make more informed food choices. It is a small, but serious, win for Obamacare.
Now we just have to hope the FDA does not backtrack when the grocer and pizza lobbyists get aggressive.
Levine, Susan. School Lunch Politics: The Surprising History of America’s Favorite Welfare Program. Princeton: Princeton University Press, 2008.
Nestle, Marion. Food Politics: How the Food Industry Influences Nutrition and Health. Berkeley, University of California Press, 2002.
Oliver, J. Fat Politics: The Real Story behind America’s Obesity Epidemic. New York: Oxford University Press, 2006).
Acrinis, Gyorgy. Nutritionism: The Science and Politics of Dietary Advice. New York: Columbia University Press, 2013.
- Select Committee on Nutrition and Human Needs, Dietary Goals for the United States, United States Senate, 95th Congress, 1st Session (December 1977). Return to text.
- Marion Nestle, Food Politics: How the Food Industry Influences Nutrition and Health (Berkeley: University of California Press, 2002), 40-41. Return to text.
- Letter from William E. Dickinson, President, Salt Institute, Select Committee on Nutrition and Human Needs, Dietary Goals for the United States — Supplemental Views, United States Senate, 95th Congress, 1st Session (November 1977). Return to text.
- “Panel Stands by Its Dietary Goals But Eases a View on Eating Meat,” New York Times, January 24, 1978, 22. Return to text.