Bipartisanship is a rare bird in Congress these days but two female lawmakers have agreed on one thing: the Food and Drug Administration really needs to ease up on its obsession with menu labels and calorie counts.
Last week, the House passed H.R. 2017, the Common Sense Nutrition Disclosure Act of 2015, which was introduced this session by Congresswomen Cathy McMorris Rodgers (R-OR) and Loretta Sanchez (D-CA). The bill has a simple goal–to ease menu-labeling regulations originally mandated by the Affordable Care Act.
The original menu-labeling mandate included in the ACA was very narrowly written, allowing for many businesses to be exempt. It simply said that calories are to be listed “…on menus and menu boards in chain restaurants, similar retail food establishments and vending machines with 20 or more locations…”
Yet, during the rule making process, the Food and Drug Administration – the agency responsible for administering this regulation and never one to pass up taking a mile when given an inch — expanded the language to include nearly every possible food establishment currently in existence. The FDA’s interpretation also made it possible to capture smaller sized businesses, which, again, went beyond the original ACA language.
As a result, the FDA’s requirements now applied to just about any establishment that offered food for sale: bakeries, cafeterias, coffee shops, convenience stores, and delicatessens. But that wasn’t enough. The FDA even listed food service facilities located within entertainment venues (such as amusement parks, bowling alleys, and movie theatres), food service vendors (e.g., ice cream shops and mall cookie counters), food take-out and/or delivery establishments, grocery stores, and retail confectionary stores. Oddly, they left off your child’s lemonade stand, but give them time.
While McMorris Rodgers and Sanchez deserve praise for raising awareness about this latest counter-productive snare of bureaucratic red tape, the very need for this bill betrays a more fundamental problem: Why does Congress continually need to go back and fix agency overreach and agency misinterpretation of Congressional intent during the rule making process? By what authority does the FDA broadly expand the target of a regulation? More importantly, why is Congress wasting time fixing the myriad and multiple problems in the ACA instead of focusing on the real solution: repeal?
Those who defend these menu labels and the FDA’s expansion of the mandate say this is all about giving consumers the information they need to make healthier decisions about the food they eat. But studies show that people really don’t pay much attention to these posted calorie counts.
While McMorris Rodgers and Sanchez are clearly trying to bring back common sense to the menu labeling debate, the real solution is to get government out of the business of creating onerous labeling requirements in the first place. After all, this regulation and the subsequent broader rule are based on a pretty insulting premise: that the American people are too stupid to realize fast food is high in calories.
Americans are more than capable of seeking out information about the food they eat and weighing the benefits and tradeoffs of different items. Congress needs to stop with the technical corrections to the ACA, which seek to fix small problems—like this calorie counts fiasco. Instead, it’s time for Congress to do something truly necessary—repeal the ACA entirely.