Devon E. Winkles, Weighing the Value of Information: Why the Federal Government Should Require Nutrition Labeling for Food Served in Restaurants

• Jurisdiction: United States,Federal
• Publication year: 2009
• Citation: Vol. 59 No. 2

WEIGHING THE VALUE OF INFORMATION: WHY THE FEDERAL GOVERNMENT SHOULD REQUIRE NUTRITION LABELING FOR FOOD SERVED IN RESTAURANTS

ABSTRACT

Obesity has become a growing public health concern in the United States. State and local policymakers, as well as the federal government, have proposed and implemented a variety of measures to curb consumption of unhealthy food and promote healthy lifestyles. Providing nutrition information to consumers is one strategy that has been implemented, most notably in the Nutritional Labeling and Education Act of 1990. Such a strategy should again be employed to address overconsumption and over-marketing of high calorie food at restaurants, as well as to remedy the patchwork of menu labeling requirements that has been created in recent years and continues to expand. This Comment uses an interdisciplinary approach to weigh the regulatory design options available to lawmakers to address obesity, and particularly, the role consumption of restaurant food plays in contributing to obesity.

"The free market economy is predicated on the informed consumer. It is the fundamental assumption about how markets work."

-Tom McGarity¹

"When we talk about prevention, it begins with information."

-California State Senator Alex Padilla²

INTRODUCTION

Ashley Pelman was fourteen years old, stood four feet, ten inches, and weighed 170 pounds when she sued McDonald's.³She had eaten at

McDonald's an average of three to four times a week since she was five years old.⁴In her suit she alleged that McDonald's had a duty to disclose the risks of eating unhealthy fast food and that without such disclosure, McDonald's was misleading the public.⁵The Court dismissed her claim, asserting that the nutritional content of food from McDonald's was common knowledge.⁶It stated that "legal consequences should not attach to the consumption of hamburgers and other fast food fare unless consumers are unaware of the dangers of eating such food."⁷The court assumed that common sense was all the knowledge necessary to determine that fast food posed health risks.⁸

The court's assumption that consumers are fully aware of the risks of eating restaurant food is incorrect.⁹In fact, consumers often cannot accurately assess the nutrient content of restaurant food, and false estimates of nutrient content distort rational consumption choices.¹⁰While tort liability is probably not the best way to address the failure of consumers like Ashley Pelman to estimate the nutrient content of their food,¹¹as the court opinion hinted, a federally mandated nutrient disclosure law may be a sound policy alternative.¹²

This Comment asserts that Congress should adopt a uniform nutrient disclosure law for restaurants. It reaches this conclusion by analyzing the regulatory design options available to policymakers through an interdisciplinary lens, borrowing from law and economics, cognitive psychology, public health, and ethics disciplines. This Comment considers competing regulatory goals such as protecting consumers, preserving and promoting individual liberty, fostering industry efficiency, and allowing for state and local innovation.

Part I outlines the legislative landscape with regard to obesity in America and provides an overview of actions taken to target the negative effects of food sold in restaurants. Part II explains the benefits of using the nutrient disclosure approach and contrasts that approach with other information-based and non- information-based approaches to combating obesity. It argues that nutrient disclosure is the best tool to promote efficient decision making, combat obesity, and advance individual liberty. Part III recommends the adoption of a federal law requiring nutrient disclosure for food served in restaurants to prevent a patchwork system of state and local disclosure requirements. Part IV addresses preemption questions by balancing the goal of uniformity with the need to preserve state and local governmental authority to address specific community health concerns. This Comment argues that states and localities should be allowed to experiment with obesity-targeting strategies that do not raise patchwork problems and to adopt programs that the federal government is unable or unsuited to implement.

I. LEGISLATIVE BACKGROUND REGARDING RESTAURANT CONTRIBUTIONS TO

OBESITY

Obesity is a concern for policymakers because of its massive public health implications. Obesity raises the incidence of coronary heart disease, type 2 diabetes, various types of cancer, high blood pressure, high cholesterol, stroke, liver and gallbladder disease, sleep apnea and respiratory problems, osteoarthritis, and gynecological problems.¹³According to National Health

Accounts, aggregate medical spending due to excessive weight or obesity was

$78.5 billion in 1998.¹⁴Almost two-thirds of American adults are overweight, which is defined as having a body mass index (BMI) between 25 and 29.9, or obese, which is defined as having a BMI of 30 or higher.¹⁵Obesity rates have been on the rise for the past several decades.¹⁶According to congressional findings, "increased caloric intake is a key factor contributing to the alarming increase in obesity in the United States."¹⁷

In the past two decades, the number of meals prepared or eaten outside the home has increased significantly.¹⁸According to Dr. Barry Popkin, a nutritional epidemiologist at the University of North Carolina, "[p]eople are eating more, and more often . . . [a]nd the foods that they are consuming almost always replace meals cooked in a kitchen and eaten at a table."¹⁹

Studies show that "[c]hildren eat almost twice as many calories (770) when they eat a meal at a restaurant as they do when they eat at home (420)."²⁰

Restaurant meals are generally larger and have more calories than meals prepared at home.²¹Thus, policymakers have recently targeted restaurants as sources of unhealthy and uninformed consumption. This Part will outline how various levels of government have taken steps to promote healthy food consumption.

A. Federal Action

The federal government demonstrated its authority to regulate food products when Congress enacted the Food, Drug, and Cosmetic Act (FDCA) in

1938.²²The Nutrition Labeling and Education Act of 1990 (NLEA) provided amendments to the FDCA that established a system of uniform labeling of certain food products in interstate commerce.²³The NLEA established nutritional labeling in the "Nutrition Facts" bar on most packaged food products and regulated labeling for products with voluntary nutritional claims such as "Low Fat."²⁴Congressional findings indicate that about seventy-five percent of adults report using NLEA-mandated food labels on packaged food and that approximately half of people report changing their minds about buying food products because of the information provided.²⁵

1. The MEAL Act

In 2003, Representative Rosa DeLauro and Senator Tom Harkin introduced identical bills-the Menu Education and Labeling Act (MEAL Act) in both chambers of Congress.²⁶The MEAL Act was also proposed in the 109th and

110th Congresses²⁷and is currently pending in the 111th Congress.²⁸The MEAL Act would amend the FDCA, particularly 21 U.S.C. Sec. 343(q)(5), to extend labeling requirements to certain foods sold in restaurants.²⁹The purpose of the MEAL Act is "to enable customers to make informed choices about the nutritional content of standard menu items in large chain restaurants."³⁰The MEAL Act would require establishments with twenty or more outlets nationwide to disclose the number of calories, grams of saturated fat plus trans fat, grams of carbohydrate, and milligrams of sodium contained in a standard serving of the food in a clear and conspicuous manner in a statement adjacent to the name of each standard menu item.³¹The requirement would not apply to temporary menu items, such as specials.³²The MEAL Act would limit the exemption provided in 21 U.S.C. Sec. 343(q)(5) for restaurants and would add two additional sections to the end, providing specifically for restaurant nutrient disclosure standards.³³Notably, the MEAL Act would not preclude "a State or political subdivision of a State from requiring that a restaurant or similar retail food establishment or vending machine operator. . . provide nutrition information in addition to that required" by the federal law.³⁴Thus the Act would establish a federal floor for nutrient disclosure while explicitly permitting states and localities to pass more stringent requirements.

2. The LEAN Act

An alternative federal proposal pending before Congress is the Labeling Education and Nutrition Act (LEAN Act), introduced by Senators Thomas Carper and Lisa Murkowski and Representative Jim Matheson.³⁵The bill would require disclosure of calories on a menu board or sign (if used) or in the menu, in a menu insert, in an appendix to the menu, or in a supplemental menu.³⁶The disclosure requirements would apply to restaurant chains that operate twenty or more establishments.³⁷Other nutritional information, such as fat content, would have to be available at the establishment upon request.³⁸

The LEAN Act would preempt most state and local laws if (1) the state and local laws mandated different labeling standards for restaurants than were provided in the federal law and (2) the restaurants affected by the state or local laws were chains with twenty or more establishments.³⁹The LEAN Act is supported by the restaurant industry because of its express preemption provisions.⁴⁰

B. State and Local Action

States and localities have proposed a wide variety of policies targeting obesity, many specifically aimed at restaurant food. One approach would impose calorie disclosure or nutrition labeling requirements on restaurant chains. Other strategies include restricting fast food restaurants through zoning, banning certain ingredients, and restricting the sale of certain foods to children in school. Additionally, some states and localities impose taxes on specific foods...