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FDA delays calorie label requirement until late 2016

  1. The Food and Drug Administration will delay a requirement that chain restaurants post calorie information on menus by more than a year, until December 2016.
  2. The decision is a lobbying victory for millions of establishments that serve food — including restaurants, movie theaters, and amusement parks — that fall under the regulation and pushed for a delay.
  3. Existing research has not shown calorie labels to be effective in nudging consumers to pick healthier meals.

Calorie labels are coming soon to a fast-food restaurant near you

The White House will give businesses more time to comply with the Obamacare provision requiring them to post calorie labels on menus, the Food and Drug Administration announced Thursday.

The new regulations will hit millions of establishments that serve food and not just traditional restaurants. Businesses from coffee shops to movie theaters to amusement parks have to comply — and just got a little more time to do so.

The menu labels are part of Obamacare — and the subject of a huge lobbying fight

mcdonalds menu

Would you like a calorie label with that? (Emmanuel Dunard/AFP via Getty Images)

Tucked away on page 455 of the Affordable Care Act, Section 4205 requires "retail food establishments" with 20 or more locations to post "on the menu listing the item for sale, the number of calories contained in the standard menu item." Section 4205 also contains similar requirements for vending machines, requiring vending machine operators to "provide a sign in close proximity to each article of food or the selection button that includes a clear and conspicuous statement disclosing the number of calories contained in the article."

Section 4205 is really short, fewer than three pages. It was ambiguous about which establishments would fall under the new guidance. Fast-food restaurants like McDonald's would obviously make the cut, but establishments that didn't sell food as their primary business — amusement parks, for example — were in a gray area. Grocery stores griped to the Obama administration about the regulatory burden. Movie theaters had lobbied vigorously to have their 1,000-calorie popcorns excluded from the labeling requirement.

And initially, they won: The Food and Drug Administration's 2011 draft regulation proposed excluding establishments that had a primary business other than selling food. This would cover, according to the FDA, "movie theaters, amusement parks, general merchandise stores with in-house concession stands, hotels, and transportation carriers such as trains and airplanes."

The White House's final menu label rules are more aggressive than initial drafts — but now they're on hold

goofy

Even Goofy will fall under the heavy hand of Obamacare regulations: The Obama administration will require amusement parks to post calorie labels (Peter Bischoff/PB Archive)

The FDA got pushback on that decision from some Democratic legislators this summer, who sent the agency a letter arguing that movie theaters ought to post labels, too.

"The aim was not to confine the scope of the law solely to restaurants … but to apply broadly to restaurants as well as other retail food establishments," Sen. Tom Harkin (D-IA) and Rep. Rosa DeLauro (D-CT) wrote in an August letter. "The proposed definition is narrower than that intended by Congress."

A summary of the final regulations, released Monday, suggests the FDA heeded that advice: The agency will take a more sweeping view of who falls under the label law. The agency provided this sample list of the types of establishments that the FDA will include.

fda list

The addition of alcoholic beverages is also new in this final regulation. The New York Times talked to FDA officials who said the labeling requirement would cover "beverages served in food establishments that are on menus and menu boards" but not drinks mixed at a bar.

Now menu labeling opponents appear to have won at least one victory: delaying the signage from going up until December 2016.

"Since the FDA issued the menu labeling final rule on December 1, 2014, the agency has had extensive dialogue with chain restaurants, covered grocery stores and other covered businesses," FDA Deputy Commissioner Michael Taylor wrote in a statement. "The FDA agrees additional time is necessary for the agency to provide further clarifying guidance to help facilitate efficient compliance across all covered businesses and for covered establishments to come into compliance with the final rule."

Will calorie labels make people healthier?

Public health research gives reason to be skeptical that calorie labels will significantly change people's eating habits. Not all consumers notice the calorie information. And among those who do, the body of research slightly leans against these labels changing behaviors.

One 2008 study, conducted by Brian Elbel, Rogan Kersh, Victoria Brescoll, and L. Beth Dixon, looked at New York City's newly passed calorie-labeling requirement. It compared the eating habits of people there with those of residents of nearby Newark, which did not have similar nutritional postings.

It found that New York City residents certainly noticed the new calorie labels. Some said they would buy fewer calories, too. But at the end of the day, they didn't follow through. New York City residents studied here, who came from low-income demographics, purchased the same amount of calories before and after the labels came online. You'll notice a slight uptick in the chart below, although the authors note it's statistically insignificant.

calories health affairs

(Health Affairs)

Other research has been more mixed. One study in Seattle, conducted between 2008 and 2010, didn't find any change in the number of calories ordered at burger and sandwich restaurants — but did see a decline at taco and coffee stores.

Another study, conducted by two University of Minnesota researchers, found that when consumers were presented with calorie information in a survey setting, they would reduce their intended food order's calories by about 3 percent. But when the same researchers tested out the calorie labels in a real-world fast-food environment, nothing changed. Intentions, in other words, didn't translate into behavior change."Overall, our results show a considerable gap between actual choices and stated preferences with respect to fast food choices," they write.

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