'Common Sense' Means Repealing the FDA’s Menu-Labeling Mandate

Congress considers amending the rules. What it should do is get rid of them.

By Baylen Linnekin in Rreason. Baylen J. Linnekin is a food lawyer, author of a forthcoming book on food, regulation, and sustainability, and an adjunct professor at George Mason University Law School, where he teaches Food Law & Policy. Excerpts:

"Critics of mandatory calorie labeling, including me, have argued for years that menu-labeling provisions, including those adopted by the FDA, are rigid, overly inclusive, overly burdensome, pointless, and counterproductive.

For example, research indicates mandatory menu labeling may not just be ineffective, but also counterproductive. Studies have found that customers who view calorie counts on restaurant menus have been shown to eat more calories, rather than fewer. Contradictory studies that have touted menu labeling tend to be filled with qualifiers, along the lines of a small percentage of the small percentage of consumers who self-reported that they noticed calorie information on restaurant menus reduced their calorie intake by a small amount.

Perhaps most importantly, enforcing the rules will be tricky. The FDA currently does not inspect restaurants. It would be absurd for an agency that claims both its budget and its inspectors are strapped to suddenly take on the visual inspection of tens of thousands of restaurant menus around the country. The FDA might seek to hire local inspectors to do the job—by paying state and local health departments to do the work for them, including in states and cities that adopt legislation that mirrors federal law, as this writer suggests.

But in states where legislatures are hostile to the Affordable Care Act generally or to its menu-labeling provisions specifically, I suspect lawmakers are more likely to pass legislation to block such enforcement than they are to pass legislation that would support the federal law.

All this makes the menu-labeling provisions of the ACA sticky at best, and likely ripe for a court challenge.

It's perhaps for this latter reason that the FDA announced this past summer it would not begin enforcing the ACA menu-labeling rules until December 2016. That gives supporters of the Common Sense Nutrition Disclosure Act of 2015 a window in which to tweak the law.

Better still, based on all of the problems inherent with mandatory menu labeling, would be action in Congress to repeal the law. But that's unlikely.

"We are not debating the merits of calorie counts in restaurants," said Rep. Cathy McMorris Rodgers (R-Wash.), who introduced the Common Sense Nutrition Disclosure Act, in a recent op-ed in The Hill. "We are debating if this specific, 400-page rule is workable."

It's unworkable. But it's too bad that discussing the merits of mandatory menu labeling appear to be off the table.  As law, regulation, and policy, menu labeling is wildly unsettled. It's one that's very much in need of thoughtful debate."