The Menu Label Cops Win
The Trump Administration is knocking down stupid or destructive regulations at a fast clip, though one of the more ridiculous Obama -era directives survives: Last week the Food and Drug Administration issued draft guidance on a long-delayed rule for calorie boards at chain restaurants, and Congress ought to intervene.
FDA released guidance for posting calorie disclosures at restaurants with more than 20 locations, and the ostensible point is to help folks choose healthier foods. The regulations, which are an outgrowth of the 2010 Affordable Care Act, are set to hit in May 2018 after years of delays. Most recently, the Trump Administration hit pause on the rules to solicit more feedback, but it appears the agency is pressing on with small clarifications.
The reason some restaurants have spent years fighting these rules is not because executives lay awake at night plotting how to make Americans obese. It’s because the rules are loco. For instance: There was confusion over whether marketing material counted as a menu board and thus required calorie disclosures.
FDA’s guidance says a flyer generally isn’t a menu—what a relief—but there are other problems. Take pizza companies, which have to display per slice ranges or the number for the entire pie. Calories vary based on what you order—the barbarians who put pineapple on pizza are consuming fewer calories than someone who chooses pepperoni and extra cheese. But the number of pepperonis on a pizza depends on the pie’s size and whether someone also adds onions and sausage.
FDA’s guidance suggests listing calorie ranges for every topping. For instance: 45-60 calories for bacon, depending on the pizza’s size. The pictured examples then feature an asterisk that denotes the estimate is based on how many calories are added to a one-topping pizza. This is hardly clear for customers.
The guidance allows some flexibility on kiosks and computer tablets, provided stores don’t have other “menu boards,” with a long delineation on what constitutes a menu board. This is a waste of time. Dominos already runs an online Cal-O-Meter that allows customers to tally up the damage of the Superbowl feast, and most customers order pizza online and not in stores.
Congress for years has sat on a bill that would allow more flexibility on displaying information online, with more legal clarity. The rules are so vague that companies could face a crush of lawsuits, which will be abetted by this “nonbinding” FDA guidance.
FDA has more pressing priorities than micromanaging pizza companies, and perhaps Commissioner Scott Gottlieb wants to wrap up this fight and move on. But these rules carry real costs, and sanity from Congress could move millions of compliance dollars back into more productive uses.