The Food & Drug Administration Levels the Playing Field… Maybe

I’m sure by this time you are aware of the recent action by the FDA, whereby chain restaurants with twenty or more units, movie theaters, and pizza places in all fifty states will have to post calories on their menus. That’s just for openers.

The new FDA rules cover food in vending machines as well as certain foods in supermarkets, and—are you ready for this—alcoholic beverages on menus and menu boards in food establishments; however, a mixed drink at the bar will not be covered. Most of the rules’ provisions will not take effect for a year.

About this time last year I wrote a column discussing this proposal and the fact that supermarkets, pizza parlors, vending machines, and amusement parks were all opting to be exempt. Well, they’re not. However, it does not mean they have lost their right to go to court, which some observers say most of them will do … which is why I say “maybe.”

One of the major surprises was the inclusion of alcoholic beverages. Operators will have to figure out how they are going to present this information to guests. There are as many ways to make cocktails as there are to present pizzas. How will they list the calorie count of different wines? If you have twenty or more units and serve alcohol, it will be a challenge trying to comply.

One critic of the law was quoted as follows: “If Congress wanted to cover any establishment that sells prepared foods, they would have said that. No reasonable person is about to confuse a grocery store, convenience store or a movie theatre with a restaurant.” While I agree about movie theatres being different, grocery and convenience stores are competing every day with food service operations; it’s called “Café Microwave.”

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Example: Almost every motor lodge or motel has refrigerators and microwave ovens in their rooms. Families with two or three youngsters stop at supermarkets, load up on microwave entrees or breakfast foods, and skip going to a restaurant. What do you call that? I call it competition!

Sen. Tom Harkin, a Democrat from Iowa and one of the supporters of the Menu Labeling Act, said in an interview with The New York Times, “This rule closely mirrors congressional intent.” I want to pause here and tell you that this matter of “legislative intent” is sometimes changed by various departmental staff members, whereby the rules do not mirror legislative intent and then become the basis for legal action by the aggrieved parties, in the case of supermarkets, theaters, and other businesses.

New York was the first to implement a menu posting law in 2006. Many other states, cities, and counties followed with their own rules and regulations. This law has a preemption clause, which means that states and locations cannot set different or additional requirements on establishments covered under the federal law. Federal preemption would also apply in the case of smaller establishments that opt in to the federal standards. Once those with twenty or more units make this information available, there is no question in my mind that consumers will be asking why independents can’t do the same. A restaurant is a restaurant, no matter who owns it; the sponsors of this kind of legislation are counting on it. Ah, yes, remember the no-smoking laws? First it was for sections in restaurants and now whole towns want to do it.

Gathering and presenting this information is both time consuming and expensive, and it must be accurate. Many will need the aid of a nutritionist. As an example, when you use the term “light,” that’s what it must be.

As a recent article in The New York Times pointed out: “Advocates praised the rules as a strong public education tool, but whether menu labeling has any effect on obesity is still an open question. Some studies have shown no effect, while others found one. A 2008 study of 100 million cash register transactions at Starbucks found a 6 percent decrease in average calories purchased after calorie posting. ‘You’ll need more time out there in the real world with this to see if it works,’ said Kelly Brownell, a professor of public policy at Duke University.”

If that is the case, it will, to this writer’s mind, be a very expensive experiment for the various industries involved. This is another example of government’s “regulatory revolving-door mentality”: Pass a law and obesity will go away.

Fred G. Sampson
Fred G. Sampson is the retired President Emeritus of the New York State Restaurant Association. He began working with NYSRA in 1961. Within the next four years the NYSRA more than tripled its membership and expanded from one regional chapter to eight. Sampson played roles in representing restaurants on issues including paid sick leave, minimum wage, liquor laws, a state-wide alcohol training program and insurance plans. Comments may be sent to