By Amara Lopez*
Although the Patient Protection and Affordable Care Act of 2010 (“ACA”) garnered a lot of attention for its implication on health care and individuals’ access to affordable health insurance, it also quietly laid the groundwork for a revolution on food labeling. Section 4205 of the ACA called for restaurants and similar retail food establishments with 20 or more locations to label their menus with calorie counts.[i] Following these broad requirements and after several years of planning, on December 30, 2016, came the Food and Drug Administration’s Final Rule on Food Labeling; Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments (“Final Rule”).[ii] The Final Rule set forth compliance deadlines and final guidance on implementation.[iii]
Under the Trump Administration with a deregulatory agenda[iv], the Final Rule deadline for menu labeling was delayed last minute[v] which lead many health advocates to worry that the new Administration will not keep the label improvements a priority.[vi] A main criticism of the Final Rule from some businesses is that it was too vague. The perceived vagueness lead to general confusion about implementation and requirements, an issue to which I can speak directly. One of my central responsibilities at Whole Foods Market when I did marketing for the company was managing signage. This included various promotional displays, marketing program implementation, and of course, pricing and menus. The dichotomy between the purely logistical struggles of re-doing every menu board at every store and the culture of a health-conscious food retailer is illustrative of the two opposing viewpoints of the Final Rule. One of the company’s Core Values is to “promote the health of our stakeholders through healthy eating education.”[vii] Informational signage to improve transparency in ingredients is one simple way to educate customers. Despite warranted criticisms as to the burdens it imposes, food labeling should continue to be a top priority of health care because the greater public interest lies in its timely and successful rollout.
More specifically, ACA Section 4205 required menus to disclose the number of calories, a succinct statement concerning suggested daily caloric intake, and, in the case of salad bars or similar self-service facilities, signs listing calories per serving.[viii] Former First Lady Michelle Obama was behind this mission and in 2010 gave an enthusiastic speech to the National Restaurant Association where she positioned the menu labeling initiative as part of her “Let’s Move!” healthy kids campaign.[ix] Her campaign’s ultimate goal was to reduce the obesity epidemic in America and reduce the economic impact of treating obesity-related health conditions.[x] Then, after transitioning from President Obama to President Trump, the Food and Drug Administration (“FDA”) announced that, in response to comments received, they were extending the compliance date another year to consider opportunities to reduce cost and enhance flexibility of the requirements.[xi] It is necessary to note the FDA’s Nutrition Facts label changes as well. “On May 20, 2016, the FDA announced the new Nutrition Facts label for packaged foods to reflect new scientific information, including the link between diet and chronic diseases such as obesity and heart disease. The new label will make it easier for consumers to make better informed food choices.”[xii] Altogether, these food-focused policy changes aimed to improve the health of Americans by enabling consumers to make more educated decisions when purchasing food.
Some businesses struggled to comply with the law. A motion for a stay and reconsideration of the Final Rule was brought on April 5, 2017, on behalf of the National Association of Convenience Stores (“NACS”) and the National Grocers Association (“NGA”).[xiii] The Petitioners argued that many regulated businesses were unable to comply with the Final Rule and were “now on the verge of those regulations becoming effective and putting thousands of businesses and their employees at substantial risk of liability.”[xiv] For example, petitioners sought more clarity on what constitutes a “menu” (point-of-purchase menu boards? Print menus? Online menus? All of the above?).[xv]
The relative ambiguity of the ACA Section 4205 was fitting to the nature of the industry. Although specific instructions were not laid out by the FDA, the objective was clear: put calorie counts next to each food item on the menu. At Whole Foods Market, menus and other signage were often unique to every store. The company had begun opening store-specific restaurants and venues around 2012 ranging from juice bars to full-service restaurants. The flexibility in direction allowed our marketing team to input the required information on the menus in a way that fit our individual needs. To be clear, the process was complicated and costly. The task of gathering the data necessary to accurately calculate calorie counts was a major undertaking on its own. The labor required for designing new menus and the cost of materials for new menus is significant. Additionally, as I mentioned, Whole Foods Market is unlike other major food chains such as McDonald’s or Panera Bread in that its food offerings are unique across many of the 400+ store fronts[xvi]. This meant a major menu overhaul and so flexibility was, in some regards, helpful.
When word spread that the Final Rule deadline was extended, Whole Foods Market and many other grocery leaders made the determination to continue execution regardless.[xvii] In a sense, the delay came so late in the game that it only made sense to do so. Resources and labor were allocated to the task and to cancel all efforts seemed wasteful. It seemed that an effort to increase customer education on ingredients and nutrition was important to the mission of Whole Foods Market. However, such sentiment was certainly lacking in some restaurants, fast food chains, and other prepared-foods retailers.
It may be true that clearer specifications and definitions from the FDA would help, however I am unsympathetic to an indefinite pause on the initiative. If food labeling itself can have enormous health benefits on Americans by changing their eating habits, then it follows that a cost-benefit analysis considering public interest would favor a change in labeling. The initial burden on businesses for the start-up costs of procuring these new menu labels and setting up a system for maintenance is miniscule in comparison with the positive impact such labeling can have on the food choices Americans make.
The potential effects of the new labeling structure are two-fold: on the one hand, it can directly change consumer habits, an example being that Starbucks sold fewer pastries after labeling calories went into effect.[xviii] The other change would be the restaurants themselves changing up their offerings to include healthier options in accordance with the desires of their consumer base.[xix] Of course, more research needs to be done in determining whether such labeling actually has an impact on eating habits of consumers but early studies are promising. New York City was one of the first to implement calorie labeling on its own.[xx] A study on consumer purchasing patterns in response to the point-of-purchase calorie labels in the city’s chain restaurants found that adults who noticed the calorie labels consumed fast food less frequently than those who did not; there was a difference of 4.9 versus 6.6 meals per week.[xxi] The study concluded that all adults who reported noticing the calorie label made generally healthier choices but noted that labeling should be supplemented with other “environmental changes,” i.e. marketing and educational campaigns, in order to reach its full potential impact.[xxii]
Whole Foods Market CEO John Mackey recently published a book called The Whole Foods Diet, promoting nutrient-dense, whole-foods based, low sugar, vegan fare.[xxiii] Many avid health-conscious customers are confused as to how Mackey can promote such a diet but run a grocery store full of cupcakes, barbecue food bars, pizza, and more. The answer for him is quite simple. “You may have the highest ideals in the world, you try to educate people…but ultimately you need to sell what people want to buy or you don’t have a business,” Mackey concedes.[xxiv]
Increased government regulation in food labeling requirements could increase individual empowerment. If consumers are cognizant of the nutritional make-up of their food, they may be better able to make healthier choices on their own as evidenced in the New York City study. Companies will be forced to respond to this change. Ultimately, companies are beholden to the dollar of their customers[xxv], and if heightened food labeling turns consumers away from certain foods (for example high-sugar, high-calorie, or high-carbohydrate menu items), then companies will probably act accordingly to survive.
Research supports the idea that some of the country’s major chronic illnesses can be prevented through lifestyle changes, including and especially dietary adjustments.[xxvi] In tackling the healthcare crisis, the Obama Administration keyed in on nutrition under the ACA in 2010. By 2016, after much debate and delay, the Final Rule on Food Labeling set forth a compliance deadline that many businesses struggled to meet. The Final Rule suffered much criticism on some relative ambiguity in its requirements. The Trump Administration conceded to those opposing the Final Rule by delaying its implementation yet again just four days before the May 2017 deadline. Although many of the criticisms are warranted, an indefinite halt is not in the public interest. The FDA should work to address concerns brought forth by the NACS and NGA quickly both to capitalize on the attention such businesses gave to the issue in an effort to meet the 2017 deadline and, more importantly, in order to promote the general health of consumers. The FDA posted non-binding guidance to menu labeling in early November, a sign that the issue has not been completely set aside yet.[xxvii]
Amara Lopez is a Junior Editor on MJEAL. She can be reached at email@example.com.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
[i]Patient Protection and Affordable Care Act, 42 U.S.C. § 4205 (2012).
[ii] FDA, 21 C.F.R. §§ 11, 101, 71,157, (2014), https://www.gpo.gov/fdsys/pkg/FR-2014-12-01/pdf/2014-27833.pdf
[iv] David Shepardson, Valerie Volcovici, White House Deregulation Push Clears Out Hundreds of Proposed Rules, Reuters, (Jul. 20, 2017, 9:18 AM), https://www.reuters.com/article/us-usa-trump-regulation/white-house-deregulation-push-clears-out-hundreds-of-proposed-rules-idUSKBN1A51O1
[v] FDA, Menu Labeling Requirements, (Nov. 11, 2017), https://www.fda.gov/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/LabelingNutrition/ucm515020.htm
[vi] Helena Bottemiller Evich, Menu Labeling on Track for May, FDA Commissioner Says, Politico (Aug. 28, 2017, 3:51 PM) https://www.politico.com/story/2017/08/28/menu-labeling-on-track-for-may-fda-commissioner-says-242100
[vii] We Promote the Health of our Stakeholders Through Healthy Eating Education, WholeFoodsMarket.com http://www.wholefoodsmarket.com/mission-values/core-values/we-promote-health-our-stakeholders-through-healthy-eating-education (last visited Dec. 3, 2017).
[ix] Michelle Obama, Remarks by the First Lady obamawhitehouse.archives.gov (2010), https://obamawhitehouse.archives.gov/the-press-office/2010/09/13/remarks-first-lady-address-national-restaurant-association-meeting (last visited Nov 2, 2017).
[xii] FDA, Changes to the Nutrition Facts Label, (Nov. 11, 2017), https://www.fda.gov/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/LabelingNutrition/ucm385663.htm#dates
[xiii] Douglas S. Kantor, Petition to Stay and for Reconsideration, (Apr. 5, 2017) https://cspinet.org/sites/default/files/attachment/NACS%20NGA%20Citizen%20Petition%204-5-17.pdf
[xiv] Id at 4.
[xvi] The menu labeling requirements coincided with a big push by Whole Foods Market to centralize. During and after the process of editing the menus to comply, the company was working to reduce the amount of store-specific food venues and menu offerings to improve brand consistency as well as to reduce costs by, for example, increasing buying power.
[xvii] Helena Bottemiller Evich, Trump’s Delay of Calorie-posting Rule Jolts Restaurants, Politico (May 27, 2017, 06:49 AM), https://www.politico.com/story/2017/05/27/trump-restaurant-calorie-posting-rule-238873
[xviii] Allison Aubrey, More Salt in School Lunch, Less Nutrition Info on Menus: Trump Rolls Back Food Rules, NPR (May 2, 2017 2:53 PM), https://www.npr.org/sections/thesalt/2017/05/02/526448646/trump-administration-rolls-back-obama-era-rules-on-calorie-counts-school-lunch
[xx] Vadiveloo et al, Consumer Purchasing Patterns in Response to Calorie Labeling Legislation in New York City, 1, International Journal of Behavioral Nutrition and Physical Activity, (2011), https://ijbnpa.biomedcentral.com/track/pdf/10.1186/1479-5868-8-51?site=ijbnpa.biomedcentral.com
[xxiii] Whole Foods Market Announces Release of “The Whole Foods Diet: The Lifesaving Plan for Health and Longevity”, Media.WholeFoodsMarket.com (Apr. 11, 2017),
[xxiv] John Kell, How to Eat Healthier According to Whole Foods’ CEO, Fortune http://fortune.com/2017/05/03/whole-foods-ceo-eating-healthy/
[xxvi] CDC, The Power of Prevention, National Center for Chronic Disease Prevention and Health Promotion, 6, (2009), https://www.cdc.gov/chronicdisease/pdf/2009-power-of-prevention.pdf
[xxvii] FDA, Draft Guidance for Industry: Menu Labeling Supplemental Guidance,(Nov. 9, 2017), https://www.fda.gov/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/ucm583487.htm