Menus in food retailers need to have calories on them. Photo credit: Fraser Cottrell/Unsplash

FDA Finally Implements Affordable Care Act Calorie Count Mandates

5 mins read

After eight years of red tape, the FDA finally implements a food labeling regulation.

The FDA has just taken action on a stipulation in Barack Obama’s Affordable Care Act, mandating all restaurant chains with a minimum of 20 locations to post calorie counts on menus. Although the mandate is scaled-down from its original version, now, movie theaters, grocery stores, and vending machines must provide more detailed nutritional information, such as saturated fats and carbohydrates upon request.

The FDA disseminated instructions for implementing the provision, which went into effect on May 7, eight years after Congress announced the regulation. This postponement developed due to years of pushback from food retail organizations like the National Association of Convenience Stores and Food Marketing Institute, as well as, large privately-owned food retailing companies.

Domino’s Pizza, a fast-food chain at the forefront of the American Pizza Community, lobbied extensively for a more lax interpretation of the law regarding the pizza industry. The company offers “over 34 million ways to make a pizza,” and has “been providing nutrition information in brochures and as well as with an online cal-o-meter for well over a decade,” argues Public Relations Director, Jenny Fouracre.

While McDonald’s, Burger King, Taco Bell and Panera Bread have listed caloric information years before the mandate, many food retailers, like Legal Seafood and The Melting Pot, do not currently supply nutritional information, but voiced concern over the cost of implementing such a system.

Domino’s responded to labeling stipulations saying that “restaurants, where the majority of their orders come in remotely, should not be required to create expensive, in-store solutions that very few customers (for us, 10% or less) will see.” In those cases, asserts Fouracre, website based nutrition should be sufficient.

Additional worry from companies affected by this law has stemmed from the possibility of calorie data affecting sales, and the ability to post calorie content comprehensively.

Owners of buffets and salad bars must contend with the individual labeling of items on a menu that constantly rotates options. From movie theaters to pizza shops as food businesses and FDA are working to find a simple, universal system for both retailers and consumers to utilize.

When Democratic senator Tom Harkin (D-IA) and congresswoman Rosa DeLauro (D-CT) first proposed a menu labeling act in 2003, similar confusion ensued. States and communities around the country adopted varying interpretations of the concept, chiefly New York City and California.

According to Harvard Review, the FDA uses vulnerable language in understanding the location of food vendors in the stipulation, and what type of retailers such as food trucks and food on trains and airplanes.

Fighting for Healthier Cities

One of the major issues that stipulation in ACA attempts to tackle is the growing concern that fast-food and convenient food is linked to food-related illnesses.

During Obama’s presidency, First Lady, Michelle Obama implemented a “Get Healthy” initiative to address obesity and unhealthy lifestyles amongst children. One of the goals of the program was to offer health food options and access in communities where there have been few.

A study by the University of Leicester points out that the overwhelming numbers of fast-food stores in certain areas provides specific challenges to residents in communities of color who are also socially and economically challenged.

One of the researchers in the study, Kamlesh Khunti, a professor of Primary Care Diabetes & Vascular Medicine at the University of Leicester, said:

We found a much higher number of fast food outlets in more deprived areas where a higher number of black and minority ethnic populations resided. This in turn was associated with higher prevalence of obesity and diabetes. The results are quite alarming and have major implications for public health interventions to limit the number of fast food outlets in more deprived areas.

The alarming rates found in the Leicester study were shown across in the pond. Leading up to federal menu-labeling regulations, various versions of the law that de-incentivize limited food access and information are taking small leaps in some major cities in the country.

In 2008, Los Angeles City Council imposed a moratorium on the construction of fast-food chains as a response to the overwhelming numbers of convenience food retailers. Reports showed that 45 percent of the 900 fast food restaurants operated in the inner city where a disproportionate number of Black and Latino communities live, and deal with high rates of obesity and diabetes.

Seven years later, a Rand study says that the moratorium did not decrease obesity in Los Angeles. In fact, obesity has increased from 63 percent to 75 percent.

However, in Berkeley, a small, but thriving Bay Area city in Northern California, imposed a tax on sugary drinks. A self-reported study in a New York Times article concluded that drink consumption of those beverages decreased 21 percent.

On the East Coast, New York City mayor, Michael Bloomberg, implemented a regulation in 2013 that banned sugary drinks bigger than 16 ounces. While a judge overturned the ban one day before it was implemented, in 2016, Philadelphia’s city council passed a bill that charged a 1.5 cent tax on soda, sweetened beverages and diet drinks. The tax went into effect January 2017. A New York Post report says that it has negatively impacted the beverage revenue of businesses.

Economics is an overriding issue in determining what methods worked. Berkeley being the only city showing healthier living also houses some of the richest people in the nation.

Read this excellent article about hunger in the United States

Implementing Menu Labeling

When the Affordable Care Act called for menu labeling on a national scale in 2010, both the FDA and Congress delayed implementation of the rule for another eight years. The FDA ended up fine-tuning its guidelines in an attempt to accommodate the needs of companies, like Domino’s. Congress went implemented a provision into a 2015 tax and spending bill, signed by President Obama, which extended the deadline of menu labeling compliance.

When asked whether or not Domino’s feels like the FDA has adequately worked with food retailers on this issue, Fouracre responded, “We prefer not to answer this.”

Though Fouracre purports that “many” of Domino’s pizza combinations “fit into well-known diet and nutrition programs,” American obesity and heart disease statistics point to other conclusions.

Obesity rates continue to climb. Now afflicting around 36.5% of adults nationally, 1 in 4 American deaths can be attributed to heart disease stemming from an unhealthy lifestyle. Annual treatment of heart disease and strokes costs the nation over $316.6 billion dollars, and only continues to increase, creating further financial and public health issues.

The Trump Administration, thus far, shows no objection of the regulation. Trump’s chosen FDA Commissioner, Scott Gottlieb, asserted that this is only the first step in stronger national nutrition policy. Gottlieb’s statement announcing the new calorie regulation cites a RAND Corporation study showing that consumers supplied with nutrition information opt for lower calorie items.

The FDA forecasts a consumer adjustment of around 50 calories per day, equating to a potential weight loss of 3-5 pounds, annually. In time, this small margin of change could lead to stagnancy, or even, decline in American obesity rates.

Congresswoman, Rosa Delauro, concurs that, “The changes going into effect today give Americans the tools they need to make healthy choices… Consumers deserve to know how many calories are in the food they are buying.” Delauro refers to the menu labeling as a, “pro consumer policy,” one that Gottlieb hopes is the first of many.

At the end of March, Gottlieb announced his Nutrition Innovation Strategy, a policy that will attempt to redefine the perception, terminology, and physical representation of what is ‘healthy’. Through this process, the FDA Commissioner hopes to grant Americans “easier access to nutritious, affordable foods,” and definitively acknowledges health as a non-partisan issue.
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Gabrielle Lenhard is a Brooklyn based freelance writer and video artist, creating as Rude Ink.

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