Count Your Calories, Says the FDA

By Nicholas J. Diamond

Fast Food emblems set on chalkboard. Hand drawn doodle style. Image via Thinkstock.

On May 7, a provision of the Affordable Care Act (ACA) relating to nutrition-labeling requirements finally went into effect, following three extensions to its compliance date by the U.S. Food and Drug Administration (FDA). In brief, under the requirements, most chain restaurants must now display calorie counts per serving on their menus. You may have already noticed that some of your favorite establishments have been ahead of the curve for awhile.

As I outline below, I broadly agree with the direction of the nutrition-labeling requirements, but highlight weaknesses and offer a way forward.

The Nutrition-Labeling Requirements

The ACA provided that the calorie count per serving must be displayed for “a standard menu item that is offered for sale in a restaurant or similar retail food establishment that is part of a chain with 20 or more locations”.

The 2014 final regulations define “restaurant or similar retail food establishment” as “a retail establishment that offers for sale restaurant-type food, except if it is a school”. In addition to schools, the final regulations exempt, among others, “transportation carriers” (e.g., trains, airplanes), food trucks, sidewalk carts, and generally any establishment with less than 20 locations.

The final regulations also define “restaurant-type food” as you might imagine excluding, among other things, condiments and daily specials. Finally, as you might also imagine, the final regulations detail how calorie counts must be displayed, which generally aims to ensure that they are visible and adjacent to the standard menu items to which they apply.

Pros

I have written previously about the importance of the FDA’s role in public health policymaking and recent positive developments in service of this role. The nutrition-labeling requirements further support this crucial role and, to my mind, represent a natural progression in nutrition-labeling in a modern, politically palatable public health agenda.

What is more, the requirements motivate a broader narrative in food and nutrition policy that cannot be underestimated. In particular, the requirements prioritize transparency for consumers into what they purchase and consume. Heightened transparency, as a normative construct, does what so many other norms struggle to do in public health, namely, benefit collective interests by advancing population health, while concurrently supporting autonomous choice. This balancing act is no easy feat.

Cons

Potential downsides to the nutrition-labeling requirements fall into at least four buckets.

First, the original ACA provision and the 2014 final rule could be stronger. For example, the “20 or more locations” standard from the ACA feels arbitrary at best and too expansive at worst. What is more, the 2014 final regulations defined “location” as “a fixed position or site”–without first soliciting public comments in the proposed rule–which poses a very real administrative law question. In practical terms, exempting trains, airplanes, food trucks, and sidewalk carts altogether–not to say anything of exempting schools–would seem to cut against the purpose of the requirements in the first place.

Second, as a further practical concern, the effects of displaying calorie counts on menus has not been widely studied. Of the limited number of city, county, and state laws in this area, evidence of the public health impact is mixed. With the federal law now in effect, however, public health researchers have an opportunity to more robustly study the impact of this type of intervention and help the FDA refine its parameters over the coming years. For example, researchers may now have the data to look at actual consumption, rather than relying on receipts as in most prior studies, and at the broader impact on industry food offerings post-implementation.

Third, displaying calorie counts on menus is a valuable, but narrow, intervention. For it to have a broader impact on obesity, it likely needs to be paired with other, related interventions. For example, the quality of food that you consume is equally important as total caloric intake. What is more, building a healthy lifestyle, of which caloric intake is just one component, matters for overall health and wellbeing. To be sure, some details are not meant to go on menus; however, situating caloric intake within a broader educational message around building a healthy lifestyle should remain a priority for public health.

Finally, as with any public health intervention, we must be mindful of whether it may exacerbate or improve existing inequalities. For example, a recent study projecting the establishments that would be affected by the FDA’s nutrition-labeling requirements found that lower income populations are less likely to be exposed to those establishments. If the new requirements positively contribute to health outcomes, all segments of the population should benefit. As researchers become able to work with actual data, not projections, this issue warrants further study. If needed, modifications to the requirements should be analytically modeled and proposed in future rulemaking.

This entry was posted in Affordable Care Act, FDA, Nicholas J. Diamond, Obesity, Public Health by ndiamond. Bookmark the permalink.

About ndiamond

Nicholas J. Diamond, JD, LLM, MBe is an advisor and educator, with a primary focus on (global) public health law and ethics. He has a particular interest in the intersection of human rights law, especially regarding health, and international investment law. Nick works for an advisory firm in Washington, DC, where he helps biopharmaceutical companies, health insurers, and advocacy organizations better understand and respond to changes in the healthcare landscape. He also teaches part-time at Georgetown Law and George Washington, and holds (non-teaching) academic affiliations at the Perelman School of Medicine at the University of Pennsylvania. ​In prior roles, Nick led global market strategy for the healthcare and life sciences sectors at a Silicon Valley technology company, and advised the federal government on policy issues during implementation of the Affordable Care Act. His academic work has appeared in law reviews, peer-reviewed journals, and popular media outlets. He has lectured in a variety of academic and non-academic settings, and appeared on national news programs as an expert in public health law. Nick resides in Washington, DC.