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

Date01 July 2022
Published date01 July 2022
Subject MatterArticles
Administration & Society
2022, Vol. 54(6) 1045 –1088
© The Author(s) 2021
Article reuse guidelines:
DOI: 10.1177/00953997211050308
What’s the Hold Up?
The FDA’s Delayed
Implementation of
Menu-Labeling Policy
Wenhui Feng1 and Ashley M. Fox2
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.
menu labeling, implementation, bureaucratic control and discretion, credible
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
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.
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

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