Catalyst 4 Fitness

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Calorie Counts On Menu – Stop This Foolishness

I shook my head in disbelief when, in 2010, Congress passed a law requiring restaurants, groceries, and convenience store chains with more than 20 locations to post calorie counts for all restaurant-type foods on their menus, display boards, and digital kiosks. It didn’t become effective until May 2018 though, partially due to a lot of lobbying against it by the restaurant industry.

snapshot of calorie counts at several restaurants

This law was presented as an attempt by our government “to enable consumers to make informed and healthful dietary choices” when eating and drinking. With 66% of Americans of all ages (kids, young adults, middle-aged adults, and the elderly) overweight or obese, this could be viewed as an obvious solution. A no-brainer if you will. But keep in mind it was also enacted by the same group of elected officials who, in 2011, defined an 1/8 cup of tomato paste the equivalent of a ½ cup of vegetables, allowing pizza to stay on school lunch menus and be termed a “healthy meal”. The frozen food manufacturers rejoiced. Those in the health and wellness industry like me – a personal trainer and nutrition coach – cringed.

I offer the following as support of this new law being a huge waste of time and money.

Logistics and Costs
The restaurants, groceries, and convenience stores must spend a significant amount of money to design, purchase, and install new signage in all of their locations. This could reasonably entail partially reconfiguring their existing stores, and will certainly require them to maintain said new signage with each menu change.

Even if the menu offerings stay the same, their ingredients could be modified and that would likely warrant a change to the menu. Companies are always looking for ways to buy their supplies cheaper, and food is no different. If a meal can taste and look the same but cost less because they replaced ingredients or reduced the quantities of the original ingredients, companies will probably do this. They are for-profit businesses.

Additional Costs
There will be costs associated with accurately calculating the calories of each menu item, and re-calculating them when any individual ingredient is replaced or the quantity of any existing ingredient changes. A proactive company will also budget for the potential lawsuits that could be brought against them if the signage isn’t correct and/or isn’t updated promptly (a term that will undoubtedly be defined in the first court case, and probably challenged in subsequent cases).

These companies are not going to eat, pardon the pun, the initial or ongoing costs of any of their additional expenses. They will raise the prices of their items to offset their costs and maybe even try to make a profit. While it may not happen immediately, price increases will occur.

Compliance
What foods does this include?
Restaurant-type foods are defined as “foods that are usually eaten on the premises, while walking away, or soon after arriving at another location” and non-restaurant-type foods as “foods that are grocery-type items that consumers often store for use at a later time or customarily further prepare”.

The law does not apply to daily specials, temporary menu items, and several other food types. This means that McDonald’s Shamrock Shakes would not be listed on any menu or kiosk as they are only offered annually, near St. Patrick’s Day. Did you know that a large Shamrock Shake has 820 calories, 22 grams of fat, and 28 teaspoons of sugar? Staggering!

What nutritional information must be posted?
The menus and kiosks must include calorie counts, and each store location is required to provide additional nutrition information when requested, including total calories, total fat, saturated fat, trans fat, cholesterol, sodium, total carbohydrates, fiber, sugars, and protein.

Enforcement
Who is going to verify the signage is posted in accordance with the law?
Who is going to verify the nutritional information is accurate?
How often will these checks occur?

The answers to these questions aren’t very clear when either reading the law or its comment and response sections.

orange figured man sitting and surrounded by question marks

The government reiterates that they are already permitted by law to “conduct examinations and investigations for the purposes of the FDC Act through any health, food, or drug officer or employee of any State, Territory, or political subdivision thereof (such as a locality), duly commissioned to act on behalf of FDA”. They state they plan on continuing this with the new calorie count law when necessary.

Additionally, they say that while “analytical testing of standard menu items may be appropriate in some cases…we expect our routine approach to evaluating the accuracy of the nutrition information to be based on the particular facts at issue, including the reasonable basis used by the covered establishment, which may be means other than analytical testing.”

And finally, “Regarding the comment suggesting that we develop a protocol for checking the accuracy of the nutritional information provided by covered establishments, we decline to include such a protocol for checking the accuracy of the nutritional information in the rule [the law] at this time….After we have had experience in evaluating compliance with the rule, we will consider whether to develop such a protocol.”

In other words, they are going to apply their existing methods of testing and enforcement of current laws to this new one. How effectively has this addressed the misleading labeling on foods and drinks over the past twenty years? Not too much as evidenced by the high profile lawsuits against well-known and highly profitable companies like Ghiradelli, Truvia, Kraft, and Quaker Oats, just to name a few. The companies continue to make large profits, the consumers are charged higher prices, and those who blindly believe the labels or claims made by the companies are the biggest losers in all of this.

Penalties
Let’s suppose that the government somehow identifies a non-compliant restaurant, what is the penalty?

Their answer here too, is a bit murky.
The government says that “penalties are already set forth in the FDC Act, and violations…may result in enforcement action consistent with those penalties.” This Act outlines a tiered approach. The first violation could result in a 1 year prison sentence, a $1000 fine, or both. A repeat violation could warrant a 3 year prison sentence, a $10,000 fine, or both. It is unclear how an action that violates the law (i.e. an incorrect calorie count being posted for a single item, or no calorie counts posted at all) would be measured and an appropriate penalty chosen.

The government has enacted a law and simply expects the affected establishments to provide documentation showing they are following it, without clearly defining what will happen if they don’t.

Effectiveness
Beyond the logistics of establishing and maintaining the signage is the inferred education that this calorie-posting provides, even if it doesn’t include all items such as a seasonal Shamrock Shake. However, simply telling someone the total calories of a meal is pointless unless you explain what it really means to that person. You must

  • calculate the number of calories that person should take in on a daily basis to either maintain, lose, or add weight, depending on his/her goal. The US Recommended Daily Allowance of 2000 calories is rarely anyone’s calculated daily intake
  • show how the calories of the desired item, including alcoholic drinks, fit within that person’s daily diet (for instance, the sugar in the Shamrock Shake exceeds the daily recommended amount of sugar for most people)
  • and to truly help people learn, provide two more meaningful explanations
    • define macronutrients (protein, carbohydrate, and fat) and tell how they are used in the body
    • describe the differences when a body processes 100 calories of cookies compared to a 100 calories of grilled chicken. A calorie is not a calorie and your internal organs and performance are not affected in the same ways.

This will be further complicated by the fact that the law allows a range of calories to be posted if there are 3 or more choices with a meal. An example is a sandwich that can be purchased with chips, a side salad, or fruit. Instead of providing the calorie count for each choice, a range such as “250 – 400 calories” is permitted to be posted. Apparently the consumer must guess the number of calories in these types of meals.

measure success with tape measure

Does the government truly think requiring restaurants to have additional nutrition information available upon request will make a difference in the weight of Americans? Isn’t this the same as expecting someone in a grocery store to read the nutritional label and understand how eating that food will affect them? With 66% of Americans overweight or obese, it’s apparent that this philosophy is not working.

Sixty-six percent translates to 2 out of every 3 people needing to be educated on these points. Who is going to do this? How? When? And if people are identified to take responsibility for this, what qualifications must they hold?

Results
Gathering unbiased results on whether posting calories is causing the desired effect of helping Americans lose weight will literally take years. An objective study performed by qualified, third party researchers (those not associated with the government agencies who enacted or lobbied for this law, the food industry, or even the signage industry) will need to track a large enough number of people to make it statistically significant, document the  frequency of the restaurants they patronage both with and without posted calorie counts, somehow control for external factors including exercise and health issues, and then monitor all of this for several years to collect sufficient data that will in turn provide accurate conclusions. Whew! Who is going to do this? Who is going to fund this? Is the American public going to willingly participate?

Is this effort worth the result? Or could the government’s dollars – actually our taxpaying dollars – be more efficiently and effectively spent addressing the rampant problem of obesity differently?

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