President Donald Trump’s push to reduce the government burden on business is instead causing chaos in the food industry after he suddenly yanked a rule requiring calories to be posted on menus nationwide.
Trump’s Food and Drug Administration delayed the rule just four days before it was supposed to go into effect this month, jolting food purveyors from steakhouses to convenience stores who’d already been trying to comply. And even though the FDA touted the delay as a way to reduce costs and increase flexibility for businesses, the change did not come early enough to save these companies any money. Many had already spent millions of dollars printing and shipping new menus to thousands of locations across the country so they would be ready for the original May 5 deadline.
"We were very shocked and discouraged," said Sara Burnett, director of food policy and wellness at Panera, which has been voluntarily posting calories on its menus since 2010.
"We’ve had plenty of time for organizations to figure out how to do this either on your own, or strictly in compliance with the federal legislation,” said Burnett, noting that FDA and the industry have been working on menu labeling for seven years. “We’ve all had plenty of time to prepare."
Now what’s left is a hodgepodge of inconsistent menu labeling that’s confusing for consumers as each chain had to make a last-minute decision about whether to go ahead with their plans to post calories. Case in point: The $45 billion pizza industry. At California Pizza Kitchen, a sit-down restaurant, calories are now listed for each slice of pie, right next to the price. Over at Domino’s, if you order online, as most people do, you won’t see any calorie counts until you get to checkout. At Pizza Hut? They label calories in at least some of their stores, but those numbers don’t show up when you order online.
The delay also re-opens the rifts between different parts of the food industry over how stringent the rules should be. The restaurant industry itself — the second-largest employer in the country — actually lobbied alongside consumer advocates for the federal labeling mandate as a way to fix to the messy and expensive patchwork of state and local laws that had cropped up at the behest of health advocates across the country. Meanwhile, the grocery, convenience store and pizza lobbies have been pushing back, seeking less-strict requirements.
Former President Barack Obama’s FDA started writing the rule after the calorie-labeling mandate was tucked into the Affordable Care Act in 2010. But even during the Obama administration, which supported the rules as a way to help tackle the country’s crippling obesity epidemic, the requirement faced repeated delays under industry pressure. The rule that the FDA originally proposed in 2011 and finalized in 2014 requires chains with 20 or more locations to list calories on all menus so they are visible when a consumer is ordering. The Obama administration took a broad view of what should be covered under the rule, making sure to include movie theaters and alcohol.
But in the midst of the Trump administration’s anti-regulatory push, the rule was quickly swept aside.
"Under President Trump, our department will focus on promoting public health in ways that work for American consumers,” said HHS Secretary Tom Price, in a statement praising FDA’s decision. “Toward that end, the FDA is asking for feedback about how to make the Menu Labeling Rule more flexible and less burdensome while still providing useful information to consumers. We look forward to working with all involved to find the right balance."
The FDA pushed the deadline for the rule back a full year, to May 2018, but it could be longer if the agency makes substantial changes to the rule, which now appears likely.
Behind the scenes, restaurant leaders are irate about the 11th-hour change, but they are reluctant to speak out against the FDA or the Trump administration.
The National Restaurant Association, though a spokesperson, declined to be interviewed for this story, instead pointing to a statement the group made right after FDA announced the change.
“This delay upends plans that have been in motion for years throughout the food industry,” said Cicely Simpson, executive vice president for government affairs at NRA. “We will continue to strongly advocate on behalf of what is best for small businesses and American consumers.”
The grocery, convenience and pizza industries, however, see the delay as a chance to end up with less-stringent rules, even though many of them have already started posting calorie counts. For years, retailers, including the National Grocers Association, the Food Marketing Institute and the National Association of Convenience Stores and major pizza makers, represented by the American Pizza Community, tried to largely get out of menu labeling, arguing that it was unfair and burdensome.
After a bitter, yearslong war with the National Restaurant Association, which fought to keep all businesses selling prepared foods in the rule so its competitors wouldn’t get a pass, the grocery and convenience lobbies dropped their bid to be exempt. But they are still pressing Congress to take up legislation that relaxes the rules, provides sweeping protection from litigation, and gives companies doing mostly take-out and delivery orders (read: pizza chains) a pass on having to post calories on their in-store menus. The House version of the legislation, sponsored by GOP Conference Chair Cathy McMorris Rodgers, passed last February, but a companion bill sponsored by Sen. Roy Blunt, hasn’t gotten traction.
Meanwhile, a POLITICO review of more than 40 companies finds that most large chain restaurants, grocery and some convenience stores are prominently displaying calories on their menus despite the reprieve from Trump, but the extent to which they’re labeling is all over the map.
Even many grocery and convenience leaders went ahead and started labeling anyway, though there are gaps in what’s being disclosed voluntarily. At a Giant in Alexandria, nearly all prepared foods were labeled during a recent visit, down to the croutons and dried cranberries in the salad bar, except for the store’s hot food items, like fried chicken and macaroni and cheese. A block away, a Shopper’s was found to be labeling only its hot food and not the rest of its prepared foods. At Whole Foods, nearly everything is labeled, except for the olive bar. In the coffee stand there, most drinks are labeled except for juices.
Less than a mile from the Capitol, 7-Eleven is posting calories for all its prepared foods, down to the individual donut. A pizza slice there will set you back between 560 and 620 calories, the menu says, and you can get two slices for $2. Sheetz, a popular gas station/fast casual restaurant, said it’s in the process of testing calorie counts at some stores.
“While many folks have gone forward and have no intent to go back, these fixes still need to be made,” said Rob Rosado, director of government relations for the Food Marketing Institute, which represents large grocers like Walmart and Kroger.
Rosado said he wants to see Congress pass legislation that walks back some of the prescriptiveness of the rule, giving retailers more flexibility to post calories on a nearby placard, for example, instead of next to each item in the prepared food bar. He also argued that FDA needs to do a better job of explaining to companies how they can comply with menu labeling.
“It would be great if they would just provide some clarification,” Rosado said.
The majority of chain restaurants reviewed by POLITICO are also labeling their calories voluntarily. At Taco Bell, for example, a customer can now see clearly that the Fiesta Taco Salad there contains more calories (760) than the Crunchwrap Supreme (530). Over at IHOP, a calorie-conscious consumer might want to go with the red velvet pancakes (410-690) and steer clear of the cheeseburger omelet (1,450).
There was also a fair amount of inconsistency. At one Shake Shack in Virginia, calories were posted on a menu outside the store, but there were no calories listed on the main menu inside. At a nearby Popeyes, the menu didn’t list calories at all, but they could be found on some promo materials.
Consumer advocates, who have pressed for more than a decade to get more disclosure in the hopes that it will help consumers make healthier choices, are livid.
Margo Wootan, director of nutrition policy at the Center for Science in the Public Interest, said she thinks that menu labeling, even though it’s mostly supported by industry, got swept up into Trump’s larger deregulatory push.
“It was just irresistible to this anti-regulation administration … even if it hurts business” she said.
“I think that’s why the restaurants got screwed, while the convenience stores and supermarkets got what they wanted.”
Last week, New York City Mayor Bill de Blasio announced the city was going to start enforcing menu labeling despite FDA’s move, prompting fears that the restaurant industry was about to find itself back where it started seven years ago.
CSPI is now urging other cities and states to move ahead.
“I think other states and localities are going to once again look to New York City as a leader on this and go ahead and enforce menu labeling,” said Wootan. “They’re tired of waiting. Consumers have waited long enough.”