FDA Stalls On Obamacare’s Calorie Labeling Rule To Accommodate Special Interests

As part of President Obama’s Affordable Care Act, Congress passed a national menu labeling law in 2010 that would require restaurant chains with more than 20 locations post calorie counts for each standard menu item. Three years later, the Food and Drug Administration is still deliberating on the “extremely thorny” issue of how to accommodate various special interests in executing the law. The latest delay concerns clashing interests in the restaurant and grocery lobbies, which believe they should be exempt from the labeling rules:

While the restaurant industry has signed on to the idea and helped to write the new regulations, supermarkets, convenience stores and other retailers that sell prepared food say they want to no part of it.

“There are very, very strong opinions and powerful voices both on the consumer and public health side and on the industry side, and we have worked very hard to sort of figure out what really makes sense and also what is implementable,” FDA Commissioner Margaret Hamburg said in a recent interview with The Associated Press.

Hamburg said menu labeling has turned out to be one of the FDA’s most challenging issues, and while requiring calorie counts in some establishments might make sense on paper, “in practice it really would be very hard.” She did not say what specific types of establishments she was referring to.

If the FDA could set aside these competing business interests, a national labeling rule should be fairly straightforward — in fact, many chains already post calorie counts on their menus in compliance with local laws. But the FDA is not accustomed to writing mandatory rules for the food industry. The agency typically offers optional guidelines and allows businesses to self-regulate, even though voluntary industry standards tend to be far more lenient than actual regulation. One such set of voluntary guidelines, concerning antibiotic overuse in livestock, was rejected by a federal judge unimpressed by the FDA’s insistence that simply asking companies to reduce antibiotics would be more effective and less costly than enforcing a ban. Only after the judge ordered the agency to come up with a new rule did they restart a stalled review process initiated in 1977. Later, internal memos showed the FDA doubted the effectiveness of its own voluntary strategy.


And while the FDA has dragged its feet on writing a final labeling rule under Obamacare, citing the “complexity” of the issue, menu labeling has actually become increasingly important. The average American now spends almost half of their food dollars on prepared meals and eats restaurant food about 5.8 times per week. Research indicates that labels make food vendors reconsider their offerings, lowering their calorie count and portion sizes.

In light of the New York Supreme Court’s invalidation of New York City’s proposed ban on large sugary drinks yesterday, the national menu labeling rule serves as a helpful reminder that city-level food policy experimentation can prevail. New York pioneered menu labeling laws in 2006, only to be sued immediately by the New York State Restaurant Association. A federal judge initially struck down the law, but the city ultimately won in federal appellate court.

Despite outcry from the restaurant lobby, the New York City rule quickly became a template for other cities and counties. By 2009, 21 state and local governments had requirements for chain restaurants to disclose nutritional information. Now, even the National Restaurant Association is on board with national standards, favoring a uniform policy rather than a patchwork of local laws. The only obstacle that remains to nationwide menu labels is the regulatory agency unwilling to upset “powerful voices” while doing its job.