July 28 2015
On my way into work, I usually hit the McDonald's drive-through for breakfast. My typical order: two sausage burritos and a large Diet Coke (no ice). The menu board informs me that each burrito contains 300 calories. That's 50 more than an egg white sandwich but 300 fewer than a bacon, egg, and cheese bagel.
McDonald's started posting calorie counts on all its menus in September 2012. The move was partially a response to a proposed 2011 Food and Drug Administration (FDA) rule affecting chain restaurants and large vending machine operators. Under the rule, calories must be displayed on all menus and menu boards, while other nutritional information—including calories from fat, cholesterol, sugars, and protein—must be made available in writing upon request.
The regulation, finalized in 2014, was smuggled in with the 2010 Affordable Care Act, a.k.a. Obamacare. In a paternalistic effort to fight obesity by making people more aware of the fat and sugar content of the food they consume, that law called for a national standard to pre-empt the patchwork of state laws already on the books.
It should go without saying that the proper role of government does not include telling people what to eat. But even if the government did have a right to interfere in people's nutritional choices, it wouldn't be necessary. When Obamacare passed, there was already a perceptible and growing demand from consumers themselves for more nutritional information and healthier food options.
In 2010, Self magazine launched NutritionData.com, which analyzes food labels and estimates calories in specific food from its very large database and recipes. Within a year it was recording more than 1 million unique visitors per month, according to the magazine's digital director, Kristen Dollard. But the site's data weren't entirely novel. At least 14 large restaurant chains, including Taco Bell, Dairy Queen, and McDonald's, were already providing nutritional calculators on their websites.
In fact, McDonald's began offering nutritional information more than three years before the FDA rule was finalized, when it recognized that "customers want to know more about the nutrition content of the food and beverages they order." The chain also trained some 750,000 of its employees in matters of nutrition and details of the company's menu so they would be able to answer questions from customers, and it created an app allowing customers to access nutritional information wherever they might go. At the same time, McDonald's unveiled several healthier menu items, including a grilled chicken option for the Happy Meal, an egg white McMuffin, and seasonal fruits and vegetables.
The fast food giant's sudden commitment to nutritional transparency likely had something to do with the rise of a number of competitor chains that were pitching themselves to the health-conscious crowd. Panera Bread, which fancies itself a healthy alternative to fast food, started posting calorie counts on its menus way back in 2008 and completed the process nationwide before the ACA ever became law.
It's true that Panera's interest in disclosure intensified when New York City began to consider enacting menu-labeling requirements. But that wasn't the only factor driving the company's decision. As Panera's chief concept and innovation officer, Scott G. Davis, explained during a National Restaurant News Show in 2011, consumers will find a way to get nutritional information whether a restaurant makes it openly available or not. He noted that Chipotle consumers had independently created an online calorie calculator for all of the chain's menu items. So you might as well get out in front of the demand.
But it turns out that in the fight against obesity, labeling menus hasn't delivered on its promise. Despite the clamor for more information, Panera quickly discovered that its disclosure efforts were failing to change customers' dietary choices.
This is consistent with the findings of numerous peer-reviewed studies. In the February 2011 American Journal for Preventive Medicine, Duke-NUS Graduate Medical School researchers Eric A. Finkelstein, Kiersten L. Strombotne, Nadine L. Chan, and James Krieger wrote that a mandatory menu-labeling regulation imposed on Washington state's King County restaurants did not affect consumers' calorie consumption at all. The authors "were surprised that we could not detect even the slightest hint of changes in purchasing behavior as a result of the legislation," they wrote. And their study is not alone.
Such findings are at odds with a report by the White House Task Force on Obesity, which claimed that "when presented with calorie information (how many calories are contained in each menu item) and a calorie recommendation (how many calories men and women of varying activity levels should consume), people on average order meals with significantly fewer calories." First lady and benevolent food tyrant Michelle Obama likes to cite that data point when pressing for greater restaurant regulation.
But as Julie Gunlock explained at National Review Online in 2011, that claim doesn't stand up to scrutiny. "This study was conducted in one Subway sandwich shop on only 292 participants, the vast majority of whom were adult white males, 25 percent of whom admitted they were currently dieting," she wrote. "This isn't exactly research upon which major policy decisions should be based." And yet, in this administration, it was.
There are many other arguments against food-labeling regulations of the sort the FDA is now imposing on businesses around the country. For one, the science behind what causes obesity is far from settled. All this focus on calorie counts, for instance, may be misguided, since recent food science suggests that all calories are not created equal. Yet that doesn't stop bureaucrats at the U.S. Department of Health and Human Services and the U.S. Department of Agriculture from patronizing Americans with dietary guidelines that may or may not turn out to be correct. Unfortunately, when a piece of government guidance is proven wrong—as has happened with decades of exaggerated cautions against sodium, saturated fat, and cholesterol—it can take years to reverse the position (40 years in the case of cholesterol) and correct mistakes.
A March 2012 paper by the economists Sherzod Abdukadirov of the Mercatus Center and Michael L. Marlow of California Polytechnic State University looked at anti-obesity efforts in the United States in the 20th century. The authors found that government policies have been ineffective mostly because they are designed to remedy a market failure, while in reality, obesity is a problem that many people, not least the obese themselves, have a strong incentive to address even in the absence of official intervention.
That doesn't stop the FDA from drafting rules that completely ignore the costs that will be borne by affected businesses and their customers, all without bothering to independently verify that their preferred "solutions" will really work. A document submitted by Panera General Counsel and Chief Legal Officer Scott Blair during the comment period for the FDA's proposed food-labeling rules explained that the company's ability to figure out how to provide usable information to its customers requires flexibility and time. Unfortunately, the agency does not seem to have taken those comments to heart. The final rule demands compliance on an unjustifiably short timeline and offers zero room for experimentation and improvement on official guidelines. This impedes companies that genuinely desire to help their customers make smarter decisions.
The bureaucrats at the FDA have never faced the need to swiftly adjust to changes in consumer demand, or adapt to developments in human understanding about what's healthy. Nor have they figured out how best to act on the information they learn. The same federal government that is virtually immune to the consequences of being wrong will continue to make sure that, hell or high water, you will know how much saturated fat is in that delicious, crispy KFC chicken breast.