The Corner

Obamacare’s ‘Extremely Thorny’ Calorie-Count Rules

The president’s health-care law causes plenty of headaches for businesses, and now grocery stores are the latest to worry about compliance problems.

The health law mandates calorie counts in most restaurants and other food-serving establishments, but, as the Associated Press reports, the Food and Drug Administration is finding it “extremely thorny” to write the specific regulations.

Here’s why:

“It’s a huge problem for us,” says Erik Lieberman of the Food Marketing Institute, which represents retail grocery chains. He says fighting the menu labeling rules is one of his group’s top priorities.

Lieberman says the rules could cover thousands of items in each store, unlike restaurants, which typically have fewer items. The rules could go beyond just the prepared foods case and extend to cut fruit, bakery items like pies and loaves of bread and other store items that aren’t already packaged and labeled. Lieberman says that means each store has to send all of those items out to labs to be tested, do paperwork to justify the ingredient and nutritional information for each item to the FDA and then create signage and train employees to use it.

Convenience stores say they will have similar problems.

This snag comes just as a judge ruled against New York mayor Michael Bloomberg’s soda ban, calling it “arbitrary and capricious.” Theoretically, the same could be said about this calorie-counting rule. Figuring out who’s targeted is already proving complicated:

The 2011 proposed rules would require chain restaurants with 20 or more locations, along with bakeries, grocery stores, convenience stores and coffee chains, to clearly post the calorie count for each item on their menus. Additional nutritional information would have to be available upon request. The rules would also apply to vending machines if calorie information isn’t already visible on the package.

The proposed rules exempted movie theaters, airplanes, bowling alleys and other businesses whose primary business is not to sell food. Alcohol would also be exempt.

The problem, of course, is more fundamental than deciding how to regulate. Calorie counts may aim to help inform individual consumers, but the implication is that the federal government — and more important, taxpayers — have a stake on whether you choose chocolate over veggies. Businesses are right to worry that they’ll be called on to be unofficial enforcers, asked to help micromanage consumers’ nutritional intake. Meanwhile, as businesses struggle to comply, healthy and indulgent eaters alike can anticipate higher food prices. 

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