Pizza and Paternalism: The Calorie Count Clash

Dina Rosin (CMC ’20)

In 2010, the Affordable Care Act (ACA), otherwise known as “Obamacare,” required establishments selling food and beverages to post calorie counts for their products. Section 4205 of the Act calls for “nutrition labeling of standard menu items at chain restaurants.” Restaurants that have 20 or more locations in the United States are responsible for displaying calorie counts on all food and beverages sold, and making additional nutritional information available to the consumer as well. Chain restaurants and vending machines have until May 7, 2018, to comply with this law. Though the Republicans in Congress have attempted to repeal and replace Obamacare throughout the Trump presidency so far, ultimately the legal fate of calorie counts is indeterminate. Eventually, the enforcement of this law will be determined by whether Congress considers public health as a sufficient reason for regulating businesses.

This law regarding calorie counts is controversial, especially from the perspective of food and beverage sellers. Restaurants not only have to pay the “menu costs” of changing their signs and menus to display the calorie counts, but also must front the costs of laboratory testing of their products necessary to determine calorie counts. Many restaurateurs argue that this law is an overstep on freedom of speech, as ensured by the first amendment to the Constitution. This argument is predicated on the notion of advertising being a form of speech, and, by forcing businesses to advertise their calorie counts, the government is obstructing the freedom of businesses to advertise their products. However, this claim lacks substantial legal backing, as the FDA has limited commercial claims in the past when they were deceptive to consumers and not in the best interest of public health. Essentially, the government has determined that advertisements can be restricted in the interest of public health, even if the advertisements do constitute free speech.

A surprising pioneer in the push against the enforcement of these calorie counts is the pizza industry. The American Pizza Community (APC) has had a strong presence in Washington and has fought against many of the regulations imposed by this law by highlighting unique problems that pizza retailers face under its enforcement. For example, pizza styles and toppings are highly customizable, allowing for thousands of different possibilities for each individual pizza, therefore making it nearly impossible to list how many calories each possibility would be. Thus, attempting to quantify calorie counts would be an unreasonable burden on businesses, which is an appealing argument to an administration that favors deregulation.

The APC has promoted an alternative bill, the Common Sense Nutrition Disclosure Act. This bill would remove many provisions of the menu labeling brought forward by the ACA. For example, under this new bill, businesses would be able to determine portion sizes and provide calorie counts accordingly, and businesses that do most of their sales online or by phone would not need to put calories on menus at all. This bill was introduced on February 1, 2017, and has been introduced to and read by the Health, Education, Labor, and Pensions Committee in the Senate. However, it has not been voted on by the Senate at large or the House of Representatives.

While these regulations are still on track to be mandated, the date for compliance was pushed back. The law was supposed to go into effect on May 5, 2017, however, the FDA has delayed it until May 7, 2018. This stall has been seen as a win for the pizza industry and those in favor of corporate deregulation. President Trump has been a strong proponent of deregulating businesses, and this includes making calorie count laws more lenient. However, since the delay was only announced a short five days before the law was supposed to be enforced, many companies had already complied, meaning that many businesses did not even save money from this disregard of regulation. Thus, the law has already made a significant change, even before it is enforced.

It has yet to be seen if President Trump will continue to push back, or, entirely remove, the enforcement of this law, throughout his administration. While the law currently only applies to chain restaurants, it is possible that all purveyors of food, regardless of size, could be responsible for informing the public of the nutritional composition of their products. This is an interesting case that reveals a broad tension between government attempts to impose regulations in the name of public health, and regulations that can err on the side of paternalism. In this case, the calorie count enforcement would only enforce access to information, not put in place any explicit incentives to affect consumer choices. However, some businesses have incentives to frame this as a free speech issue because this access to information could be detrimental to their bottom line. As the May 2018 deadline approaches, it has yet to be seen whether the resistance to this regulation will push it back indefinitely, or entirely eliminate it.

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