Politics & Policy

The Latest FDA Overreach

(Spencer Platt/Getty)
Posting calorie counts is costly for businesses and consumers and does not improve our health

Food prices have been steadily climbing for years. And now, thanks to the out-of-control Food and Drug Administration and the out-of-touch White House, Americans should prepare for even higher prices for years to come.

This week (that’s right, Thanksgiving week, when Americans celebrate food and freedom with equal gusto), the wet blankets at the FDA finalized new rules that will require chain restaurants as well as “bakeries, cafeterias, coffee shops, convenience stores, delicatessens, food service facilities located within entertainment venues (such as amusement parks, bowling alleys, and movie theatres, food service vendors (e.g., ice cream shops and mall cookie counters), food take-out and/or delivery establishments (such as pizza take-out and delivery establishments), grocery stores, retail confectionary stores, superstores . . . ” to post calorie information on their menus and menu boards.

I’ve written about the stupidity of such regulations for years. That’s right, for years, because it has taken that long for the bureaucracy to implement this portion of the Affordable Care Act, passed by Congress and signed into law in March 2010. It’s just this “slip into a coma for four years and you still won’t miss it” kind of speed that drives the best and brightest of our nation to the private sector.

The FDA apparently used this extra time (no surprise with this law and this administration) to rewrite the law to expand government’s impact. This portion of the ACA was narrowly written, ostensibly to avoid capturing too many businesses. It specified that calorie information will (emphasis mine) “be listed on menus and menu boards in chain restaurants, similar retail food establishments and vending machines with 20 or more locations. . . . ”

Yet, instead of limiting itself to the categories listed in the bill, the agency decided to use the words “similar retail food establishments” to capture as many businesses as possible. So, almost unbelievably, the rule announced this week applies to convenience stores, grocery stores, movie theaters, sports venues, and other locations the FDA deems “similar” in nature to a restaurant.

It’s as if the FDA is staffed entirely by bad boyfriends who, rather than taking their date to a proper restaurant, offer the line: “Hey baby, I’m going to take you out for a big paper tray of nachos — extra cheese sauce on me!”

Americans will pay for this government overreach. Consumers will soon see higher prices at all the above-mentioned locations — basically, all venues that offer food. And the businesses hit hardest by these new regulations will be the nation’s 37,000 supermarkets, where most consumers shop for their food.

The modern supermarket is truly amazing. These stores stock just about everything: food of every variety, some hardware items, cleaning supplies, shampoos and soaps, cards and office supplies. As a mom of three young kids, I appreciate that I can often buy everything on my long list in just one stop. Many people appreciate the ready-to-eat section of the supermarket because they enjoy the convenience of grabbing a rotisserie chicken or a prepared meal that can be warmed up and eaten at home, thereby avoiding the extra cost of being served in a restaurant.

Yet, this is exactly the part of the store that will be most affected by the new FDA regulations, despite the very real (and quite obvious) differences between it and a restaurant. The most obvious difference is that supermarket ready-to-eat counters don’t have menus, because their offerings change day to day.

I know this firsthand because I once worked in the deli of a supermarket. When the deli manager (let’s call her Marge) needed to fill the display case with a few more items, she would send me to the produce section, where the produce manager would give me a variety of very ripe fruits and vegetables — things that could no longer be sold as such, but were still perfectly fine for use chopped in a salad of some sort.

Marge and I would then put together some salads and other items that would be sold in single-serving containers. There were no recipes for these things. We just knew how to throw a few items together and make something that tasted good. It was a win for the store because it led to less waste and less monetary loss. It was also a win for the customers who liked these seasonal items, which also tended to be healthy.

Enter the menu-labeling regulations, and this perfect little ecosystem goes straight to hell.

First, the regulation will kill innovation. Since Marge doesn’t know how many calories are in each serving of her thrown-together salads, she’ll be forced to stop making them. Her boss certainly isn’t going to spend money getting each of those creations analyzed for their calories, fat, salt, and sugar (and with sugar, one would need to know what percentage occurs naturally and what percentage is added) because Marge might not have those exact ingredients available to her next week, meaning she would be making all new salads.

So, because of this law, Marge will stop making her impromptu salads. She’ll be required to follow a set recipe so that the store can post exact and accurate information about calories, fat, sugar, and salt. Never mind that this will mean fewer choices for shoppers (especially fewer vegetable and fruit choices) and more wasted produce. The government thinks Marge and her staff are better off sticking to salads that can be clearly labeled. And apparently it thinks you’ll be better off, too.

Of course, these regulations capture more than just the salads and the many other items sold in the deli. The bakery would also be affected. So much for that specialty cake you wanted to order for little Timmy’s birthday party. You’ll have to choose from these four appropriately labeled cakes.

Food writers, most of whom will cheer for these regulations, often preach about going back to a simpler time when good people cooked with love for their customers. Yet, they don’t seem to recognize that that’s exactly what Marge (and many just like her) was doing before the FDA got in there and messed it all up.

Most depressingly, study after study shows that these new regulations will do next to nothing in terms of encouraging Americans to cut calories and eat healthier. For instance, a 2011 study conducted by Duke University and the National University of Singapore’s Graduate Medical School found that calorie information displayed on menus does nothing to sway people’s food choices. New York University’s School of Medicine also conducted a study, published in the February 15, 2011, edition of the International Journal of Obesity, which found that menu labels have little effect on the food choices made by either teens or their parents.

In a very thorough 2009 joint study conducted by New York University and Yale University and published in the journal Health Affairs, researchers worked hard to study the behavior of 1,100 customers at four fast-food restaurants in poorer New York City neighborhoods, where obesity rates are high. The researchers found that only half the customers noticed the prominently posted calorie counts. Of those who noticed, only 28 percent said the information had influenced their ordering. Now, most of that 28 percent said they made healthier choices as a result. But here’s the rub: Upon inspection of their receipts, researchers found that these customers were fibbing. They only said they made healthier choices when, in actuality, these aspirational eaters ordered items that were higher in calories than what customers ordered before the calorie postings appeared.

These latest FDA rules exemplify the sorry state of American government: a pointless, costly attempt to micromanage American life, which will help no one and hurt many. There is much to celebrate about our country at Thanksgiving, but the bureaucratization of everyday American life and of every morsel of food we eat isn’t one of them. In fact, it contradicts everything for which our forefathers fought.

— Julie Gunlock writes for the Independent Women’s Forum.

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