What’s the Hold Up? The FDA’s Delayed Implementation of Menu-Labeling Policy

• Date: 01 July 2022
• Published date: 01 July 2022
• DOI: 10.1177/00953997211050308
• Subject Matter: Articles

https://doi.org/10.1177/00953997211050308

Administration & Society

2022, Vol. 54(6) 1045 –1088

© The Author(s) 2021

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DOI: 10.1177/00953997211050308

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Article

What’s the Hold Up?

The FDA’s Delayed

Implementation of

Menu-Labeling Policy

Wenhui Feng1 and Ashley M. Fox2

Abstract

Calorie labeling on menus became a federal law in 2010 but was not implemented

until 2018, 8 years after adoption. This study reconstructs the history of the

federal menu-labeling mandate using a process-tracing approach and finds that

the delays in implementation resulted not from direct agency capture by the

regulated industry, but rather from a system of indirect influence whereby

lawmakers continue to influence policy-making even after adoption. Excessive

legislative control can contribute to substantial implementation delays that

undermine legislative intent. However, administrative agencies can serve as

trustees to hold elected officials accountable to their own policy commitments.

Keywords

menu labeling, implementation, bureaucratic control and discretion, credible

commitment

Introduction

The federal-level menu-labeling mandate, which requires chain restaurants

across the country to post calorie values on their menus, became law as a

1Tufts University School of Medicine, Boston, MA, USA

2University at Albany–State University of New York, USA

Corresponding Author:

Wenhui Feng, Department of Public Health and Community Medicine, Tufts University

School of Medicine, 136 Harrison Avenue, Boston, MA 02111, USA.

Email: Wenhui.Feng@tufts.edu

1050308AAS0010.1177/00953997211050308Administration & SocietyFeng and M. Fox

research-article2021

1046 Administration & Society 54(6)

rider to the Affordable Care Act (ACA) in 2010. Although this provision was

a small portion of the ACA and had local and state precedence, it was not

implemented until 2018, 8 years after it became law and 4 years after the

health system reform portion of the ACA was implemented. In those 8 years,

the U.S. Food and Drug Administration (U.S. FDA) delayed the implementa-

tion of this rule three times. The House also passed two alternative laws to

amend this policy despite the fact that it was originally supposed to be put in

place after just 1 year. In the meantime, states and localities that had been

rapidly adopting local menu-labeling laws across the country were preempted

from putting ordinances in place until the federal government implemented

its policy. This resulted in the loss of valuable time and momentum for an

important anti-obesity measure. Why did it take so long to implement the

menu-labeling mandate?

To better understand the political dynamics that contributed to the labeling

policy’s delayed implementation, this article focuses on the period after the

menu-labeling mandate became a provision in the ACA, including the 3-year

period after the Final Rule was adopted by the FDA and implementation was

still further delayed. The article chronicles the political challenges that

delayed the implementation of the menu calorie labeling rule and discusses

the theoretical and practical implications of implementation delays for public

health practice and theories of government performance. The article ulti-

mately supports recent scholarship that finds that agencies operate strategi-

cally to obtain desired policy goals (Potter, 2019). It also demonstrates how

the numerous Congressional “mechanisms of control” can be used in a way

that actually undermines the ability of Congress to “credibly commit” to its

own policies.

This article advances the notion of the professional administrator as a

“trustee” by arguing that too much political control of the bureaucracy can

lead to “administrative exclusion,” whereby policies meant to protect the

public are delayed or denied to such a point as to be irrelevant or self-defeat-

ing, enabling reneging by principals (Miller & Whitford, 2016). Rather than

seeing bureaucracy as a “Leviathan” or a set of unelected officials setting

policy beyond its mandate, it argues that bureaucratic independence can

function as a mechanism to hold public officials accountable for their policies

and prevent reneging (Miller & Whitford, 2016).

The first section of this paper provides a review of different theoretical

arguments that might explain implementation delays and applies these to the

case of menu labeling. The second section discusses the methods and approach

used to analyze the bureaucratic holdups in the menu-labeling case. The third

section reviews the development of the menu-labeling case, focusing on how

elected officials continued to influence and delay the policy-implementation

Feng and M. Fox 1047

process. We then revisit the literature on bureaucratic control and suggest that

the menu-labeling case supports Miller and Whitford’s (2016) argument that,

“the more fundamental role for bureaucracy is not to be tamed by politicians,

but to constrain them (p. 21).” The last section concludes with a discussion of

the implications of this case for the literature on administrative decision-mak-

ing and health policy-making.

Background

Menu labeling, in theory, should not be a highly contentious issue and should

be relatively easy to implement, yet its implementation took 8 years. Menu-

labeling falls under the category of policies considered to be relatively uncon-

troversial and acceptable to those with both libertarian and paternalist

tendencies as it merely “nudges” rather than forces individual behavior, pro-

viding information to help individuals eat healthier (Thaler & Sunstein,

2008). The policy was broadly popular with the public and should be biparti-

san. Menu labeling also already had existing precedent, with the policy hav-

ing first been implemented in 2008 in the City of New York (NYC) and later

diffusing to localities across the country. Menu labeling was also being

adopted voluntarily by a number of the largest chain restaurants, including

McDonalds, thereby removing opposition from potentially powerful stake-

holders. Moreover, mandatory menu labeling, which was snuck in as a rider

in the ACA, did not receive nearly as much scrutiny as the health system

reform portion of the ACA. Yet the major health system reforms were imple-

mented on schedule starting in 2014, while the menu-labeling rule languished

for another 4 years. In fact, it was under the Trump administration that the

Final Rule was eventually implemented, in spite of the fact that Trump

assumed office promising to reduce government regulations, making the tim-

ing of the eventual implementation of menu labels under his administration

all the more confounding.

In addition, that an FDA policy would languish for 8 years without being

implemented is surprising. Previous research on the FDA has demonstrated

that it exhibits extensive autonomy and enjoys widespread public trust and

power (Carpenter, 2001, 2010). Recent literature that has investigated the

administrative delays in the menu-labeling case found that the FDA is still a

powerful agency that effectively wields its discretion against political pres-

sure. A recent study found that the FDA strategically picked the timing of key

actions in the rule-making process, especially the announcement of the pro-

posed and final rules, to protect the policy from being overturned (Potter,

2019). However, this earlier analysis ends in 2014 when the final rule was

adopted and does not explain the further delays that added an additional 4