Food & Disclosure Policy: “The Menu Mandate”

We’re late to the subject, but the latest Republican freakout over the “fascist socialism” inherent in the new healthcare act is over simply this — a requirement that chain restaurants print calorie counts conspicuously on their menus. The operative section is § 4205 of H.R. 3590, the first bill, providing, with exceptions for daily and intermittent specials, that:

[I]n the case of food that is a standard menu item that is offered for sale in a restaurant or similar retail food establishment that is part of a chain with 20 or more locations doing business under the same name (regardless of the type of ownership of the locations) and offering for sale substantially the same menu items, the restaurant or similar retail food establishment shall disclose the information described in subclauses (ii) and (iii):

Namely, next to the item, the calorie count of the item; and elsewhere on the menu, once, the average calories per item on the restaurant’s menu, and a suggested daily intake.

The chain qualifier is critical, and rebuts the argument that this requirement will drive out of business mom & pop restaurants that somehow can’t afford a one-time assessment of their menu’s caloric contents. Further, this provision both comports with federal law, and falls in line with traditional disclosure requirements we expect of other products presenting hidden dangers.

In Heart of Atlanta Motel v. U.S., 379 U.S. 241 (1964) the Supreme Court upheld the validity of the exercise of commerce clause authority over restaurants, yes, and businesses whose interactions with interstate commerce arise only from so much as the purchase of ingredients or solicitation of business from outside the state’s borders. A strained interpretation, maybe, but instrumentally, it prevents facilities from legally “blackholing” themselves to avoid federal law. This is probably a good thing.

Further, menu-printed calorie disclosures will probably duplicate information available on the internet — as in the case of, say, Chili’s or McDonald’s. But where a manufacturer or designer possesses material information that Congress determines should also be known by the consumer, we’ve only rarely permitted companies to divorce disclosure from consumption. We can assume, for example, that any smoker will know that smoking causes cancer; yet we require conspicuous, on-package labeling. We can further assume that most investors with even a quantum of common sense will look up a company online before buying its stock. But only “well-known, seasoned issuers” can comply with Securities Act disclosure requirements by putting their prospectuses online, or by incorporation-by-reference. We always demand that a marketer frontload disclosures.

The only material distinction between cigarettes, financial products, and food is that we’ve only recently begun to regard food as potentially dangerous. If that’s the issue conservatives want to fight, we should be clear about where, exactly, the battlefield lies.

To close, let’s return to the limited scope of this provision: in my admittedly short life, I’ve been fortunate enough to come to know, fairly well, areas ranging from major metropoles, to second-cities, county seats, and small towns. In each, the only restaurants I’ve run across that could ever check the “20 or more locations” box are national chains. Regional chains will only rarely rise to that level (southern favorite Mellow Mushroom does; but below that level, not even Sinclair’s, a pervasive Alabama presence, will) and local gems (Taqueria Del Sol in Atlanta, Storm’s in Hamilton, TX) fall well below the reporting threshold. Don’t let conservatives convince you they’re going to bad for the little guy. As always, he’s last on their mind.


One comment

  1. Heh, I was just thinking – how about requiring that alcoholic drink menus list PRICES. I find it odd that they generally don’t.

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