Health bill requires vending, restaurant-chain calorie counts

by Walter Olson on March 24, 2010

Why, wonders Joe Weisenthal, are we only finding out about this now? The National Restaurant Association sought the measure — which constricts the freedom of its own membership — in hopes of gaining uniformity instead of “a potential patchwork of conflicting requirements adopted by states and cities,” to quote the Times. It can be reliably predicted, though, that the ever-growing battalions of “food policy advocates” will home-made cherry pie white backgroundnot feel constrained by any supposed national deal to refrain from pushing for further piecemeal extension of state and local requirements, thus rendering any seeming uniformity but temporary.

The requirement kicks in when a restaurant chain reaches ten units, and will foreseeably make it harder for 15-unit local chains to compete with the 1,500-unit behemoths who can spread the nontrivial costs of compliance over a much larger base. Like earlier calorie-labeling laws, it will also encourage standardization by making it hazardous for owners not to prescribe and control, e.g., precisely how much topping local employees are to spread on each sandwich or pizza. Earlier here. More: Richard Goldfarb at Food Liability Law Blog has more details, and reports that the threshold for number of outlets is 20 rather than 15. There also some pre-emption of state and local regulation, although localities can still impose added requirements in the name of food safety.

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{ 15 comments }

1 Jim Collins 03.24.10 at 7:26 am

It has started. I wonder how long it will be until you are required to step on a scale before ordering at a restaurant? “Sorry sir, we can’t serve you. You are too fat. It’s the law.”. It won’t be long.

2 Max Kennerly 03.24.10 at 8:46 am

How many Mom & Pop 15-unit chains are there? 15 stores is a pretty substantial business. Here in Philly, Marathon Grill has saturated all of Center City though only 5 locations.

I don’t think there’s much economy of scale in compliance. Once you have more than a dozen stores, you already get bulk pricing from printing companies for menus and signs. Sure, McDonald’s gets the best pricing on its menus, but I doubt the hit on margins is really that different.

3 Harvey Rothenberg 03.24.10 at 2:07 pm

Laws and regulations are like people, some are good and some are bad; some make sense and some are stupid. But to do away with all of them, regulations and/or people, is simplistic and makes no sense. I’d like to know that a restaurant that is serving me and my family, is abiding by health standards and not providing whatever will maximize profits. Simple people want to believe in a simple society. It just ain’t so.

4 Dave Lincoln 03.24.10 at 7:23 pm

Harvey, how about reading the post at least, if not the articles. It’s not about rat droppings or employees washing their hands. Dictating whether a restaurant must display calorie counts or not is taking away another freedom. The unintended consequence that I see from this one, is that, as Mr. Olson alluded to at the end of the post, they will have a problem with varying your order in the least little bit, as that may make the calorie count off, causing law suits from the usual suspects.

Good luck getting your pizza with no onions, if that is how they are advertised.

You must be one of the really SIMPLE people, Harvey. Most somewhat simple people are still smart enough to look on-line or at a USDA book (FREE!) that shows calories and nutritional information for all kinds of foods.

5 Kurt 03.25.10 at 5:40 am

Dave,
Insulting Harvey is not very helpful. I also would like to know what I am getting in a restaurant. I may be able to look up in a USDA book what the caloric and salt content is of the steak, fish, or pasta is they put in front of me but that is only a small part of the issue. Please tell me where in the USDA book it lists the salt and caloric content of all the different sauces and seasonings that a restaurant uses? Does it list each chain’s content?

There is a whole series of books called something like, ‘Eat This, Not That’ that lists certain foods and it can be pretty eye opening. As someone who worked hard to lose a lot of weight and tries to keep it off, I appreciate when a restaurant makes it easier for me to make good choices.

I will agree that restaurants need more leeway on variation from the published data. Unlike pre-packaged store sold food, it can be harder to keep the actual served values within a tight tolerance. I can see some over the top activist complaining that the meal they was served had 10% more calories or fat than was published.

6 William Nuesslein 03.25.10 at 7:02 am

My economic status – low income – makes McDonald’s a restaurants a frequent choice for me and my family. I have seen two orders of salads, one by my wife, in all of my visits. The salads look good, but I wonder if the demand justifies carrying them.

So I wonder if anybody actually chances his selection at McDonald’s based on calorie count?

7 Ted Frank 03.25.10 at 8:05 am

@Max: Economies of scale very much come into play when it comes to getting certification for calorie counts.

I haven’t seen the language, but I wonder how it affects restaurants like In & Out that have substantial “off-menu” constructions available to customers. Note also that many chain restaurants rely on individual franchises to innovate, and such bottom-up innovations are now all but impossible.

8 Ted Frank 03.25.10 at 8:08 am

Separately, the literature is mixed on the efficacy of calorie-counts in restaurants. One study found that Starbucks’ customers reduced their calories in ordering (perhaps because they honestly didn’t realize that so many of Starbucks’ drinks are effectively milkshakes); another found that fast-food restaurants could “anchor” their customers by offering a ridiculously-high-calorie sandwich that then encouraged customers to order something else on the menu that wasn’t quite as high-calorie, but was higher-calorie than what they would’ve ordered otherwise.

9 gitarcarver 03.25.10 at 10:12 am

Kurt ,
As someone who worked hard to lose a lot of weight and tries to keep it off, I appreciate when a restaurant makes it easier for me to make good choices.
I appreciate it when the tone of the writings on blogs is cordial. That does not meant that I want the government to step in and regulate comments on a privately held blog.

There are a lot of variables in the making of a recipe in a restaurant. A friend of mine is a chef who says that the amount of an ingredient in a sauce or food can depend on how fresh the ingredient is, where it was caught / raised, the time of year, the humidity, etc. There are a lot of variables. (To say nothing of the fact that chefs guard the ingredients of a recipe like a state secret.) Locking a restaurant into something that by its very nature cannot be consistent from day to day, very little sense to me.

I understand and support your appreciation of restaurants that publish (or give estimates) if calories, contents, etc. To me, it makes no difference. If I want portion and calorie control, I’ll stay at home and cook my own meal. Therefore, nutritional information in a restaurant should be something that the restaurant is free to give or not give. Because you appreciate that information, you are more likely to go to a restaurant that gives that information out. It is a marketing plus to you. I respect that. To me it doesn’t matter one iota.

This type of situation highlights a great deal of what we see here on Overlawyered – if an idea is so great, the market will adopt it. Instead, the government feels necessary to tell us what is required to protect us from ourselves and thereby opens up the floodgates of more ridiculous litigation.

10 Kurt 03.25.10 at 10:27 am

gitarcarver,
I hope I came across as being cordial as that was my intention. I do not understand your comment on the government regulating what is said on blogs. That was not my proposal nor am I part of the government except as a voter;-)

Unfortunately, restaurants do not like advertising what they actually are selling. Several years ago one chain, I believe it was Ruby Tuedays, listed their calories, fat, and salt content on the menu right next to the items. It was not very helpful for their business and they quickly stopped. People would rather be ingnorant about what they were eating than having it staring at them in the face. I suspect many people just went somewhere else. I would just be happy if they supplied the information on-line. I could easily check out the information before-hand or on my phone.

11 gitarcarver 03.25.10 at 3:47 pm

I hope I came across as being cordial as that was my intention.
You were.

I do not understand your comment on the government regulating what is said on blogs.
My point is this: I suspect that you, like me, don’t like blogs where the level of rancor is high and the civility is low. There are people who do like sites like that. The type of a blog that one visits is based on the desires of the visiting person. I appreciate high civility and view it as something I look for in a blog. I was trying to equate that to your appreciation of restaurants that list their ingredients. If given the choice between a restaurant that lists ingredients and calories and one that does not, I suspect that you would choose the one that does. Whether the restaurant lists ingredients and calories doesn’t matter to me.

What blogs I visit depends on my choice and the features they offer. I don’t want the government stepping in and demanding a certain level of civility on blogs. I don’t want the government saying “you have to publish the ingredients and calories.” If that is important to you, you will patronize those restaurants that make that information available and won’t patronize those that do not. You will choose – just as I choose a blog – where to go based upon your criteria and issues that are important to you.

I would just be happy if they supplied the information on-line. I could easily check out the information before-hand or on my phone.

Isn’t there a difference between the restaurant supplying that information and the government forcing them to? Once again, if supplying the information is such a great idea and so many people support it, the restaurants that do not post the information will be at a competitive disadvantage. The market will force them to post it rather than some governmental agency that will require more inspections, more government as well as more lawsuits.

The marketplace can decide this without the government.

12 Dave Lincoln 03.26.10 at 9:34 am

I like blogs that get a little bit uncivil sometimes. It helps (me, that is) when I’m dealing with control freaks, like Harvey and Kurt above. Kurt, you may indeed have to go through some extra effort to figure out the exact nutritional value (or lack thereof) in your meal. Tough. Some of us used to like living in a free country. Once you get the various governments to control everything, you will have no choice in how to live your life. Picture yourself as the manager of the restaurant.

I get the feeling that the biggest characteristic of the statist is that he has never understood the golden rule. Number 2 is that he has never understood the difference in how people spend their own money vs. how they spend others money (even with the best intentions).

Don’t complain to me when your pizza comes with onions, or worse, anchovies, and you can’t do a thing about it.

13 GregS 03.26.10 at 10:32 am

The 15 (or 20) outlet threshold should prevent the negative effects of this requirement on most restaurants. The problem is that the advocates of this measure won’t be satisfied with this. Once the precedent has been set, supporters of this idea will start decrying the “loophole” that allows smaller chains and individual restaurants to “endanger” people’s health by not reporting the calorie counts. The bigger chains will also support closing the “loophole” as a way of harming their smaller competitors. So it will likely expand to include smaller chains and, eventually, individually-owned restaurants. That’s when we’ll start to see a lot more standardization in portion sizes and ingredients, and a lot less customization options available.

14 Bill Alexander 03.26.10 at 11:23 am

As far as I know, no large chain of restaurants got that way without having less than 10 stores at one time. This appears to come close to preventing any more chains from making that jump.

15 Benjamin 03.26.10 at 2:44 pm

What does this mean for Subway? Will they have to stop making sandwiches to order? And forget Dairy Queen where the Blizzard toppings aren’t really measured all that well by the staff. If you put the recommended amount of candy in the Blizzard, then it looks like there is less candy than in the picture and the customer complains.

I also worked at a place that made smoothies from fresh squeezed orange juice. Depending on the season the orange juice was different shades of orange. That is because different species of oranges grow at different times of the year. The calorie count has to be different if the taste, sweetness, and color vary.

Cuts of meat vary. How do you know what the calorie count of each steak is? The marbling and the weight is slightly different. They just guess.

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