New York City’s Calorie-Labeling Law:
An Analysis of Formulation and Implementation
I. Introduction and Overview
On April 30, 2008, after more than 18 months of lawsuits, public hearings, court orders, and regulatory revisions, New York City’s ground-breaking, first-in-the-nation calorie-labeling law (formally Section 81.50 of the New York City Health Code) went into full effect. The regulation, enacted directly by the Department of Health and Mental Hygiene through its regulatory powers, thus circumventing the New York City Council, requires the posting of calorie counts on menus and menu boards by all restaurants in New York City that are part of a chain of 15 or more outlets nationally that serve standardized portions (“Notice of Adoption”).
The calorie-labeling law was one in a series of aggressive and controversial, though popular, initiatives undertaken by Mayor Michael Bloomberg and his pioneering Health Commissioner Thomas R. Frieden to address preventable chronic diseases, especially those related to New York City’s obesity epidemic (Frieden, “Public Health” 972). Other measures included a smoking ban in virtually all indoor workplaces and bars and restaurants in 2002, and a ban on trans fats in restaurants enacted in 2006 (introduced concurrently with the calorie-labeling proposal) (972).
The original regulation, unveiled on September 26, 2006, targeted only those chain restaurants that had already made calorie information voluntarily available to consumers (Health Department, “Proposes”). Establishments which chose not to disclosure information would not be forced to do so. Following a period for public comment and a hearing, the regulation was approved by the Health Board two months later on December 5, 2006 (Board of Health). Just as the regulation was set to go into effect, the New York State Restaurant Association (“NYSRA”) filed a lawsuit on June 14, 2007 in federal court in Manhattan challenging its legality on the grounds that existing federal labeling law preempted any such local regulation, and that the mandate was a violation of commercial free speech under the First Amendment to the United States Constitution (Complaint).
On September 11, 2007, U.S. District Court Judge Richard Holwell struck down the calorie-labeling law on the narrow grounds that by limiting its mandate to only those businesses that were already voluntarily disclosing calorie information, it conflicted with the federal law and was therefore preempted. However, Holwell also reaffirmed the authority of local governments to mandate calorie-labeling, thus opening the door to a much more expansive application of the regulation that could force all chain restaurants to display calorie counts (Memorandum Opinion, “2007”).
The Bloomberg administration chose not to appeal the Court’s ruling, opting instead for a quick redrafting of the original amendment. Barely a month later, on October 24, 2007, the Health Department reintroduced the calorie-labeling rule. Following a period for public comment and hearing, the Health Board approved the revised rule on January 22, 2008, mandating that all chain restaurants with at least 15 stores would be required to post calorie counts on its menus and menu boards (“Notice”).
In February 2008, the NYSRA again filed suit in federal court, repeating its federal preemption and First Amendment claims. This time, Judge Holwell sided with the city on both counts, going so far as to call out the NYSRA for its seeming hypocrisy in arguing against some of the very theories it raised in its original lawsuit. The final rule took effect on April 30, 2008. Later, the U.S. Court of Appeals for the Second District would deny NYSRA’s appeal, and despite its repeated efforts to delay implementation and enforcement of the rule, NYSRA opted against taking the matter to the U.S. Supreme Court.
New York City’s first-in-the-nation calorie-labeling rule would become law, delivering a big political victory for the Bloomberg administration in its ongoing war on obesity.
Table 1. Timeline of events in New York City Dept. of Health and Mental Hygiene’s (DOHMH) proposal and adoption of §81.50 of the Health Code to require calorie-labeling in restaurants.
|Sep 2006||DOHMH proposes §81.50 of NYC Health Code to require calorie-labeling.|
|Oct 2006||DOHMH holds public hearing.|
|Dec 2006||Health Board votes unanimously to approve §81.50.|
|Feb 2007||NYC City Councilman Rivera introduces watered-down industry-backed legislation.|
|June 2007||NYSRA files lawsuit against DOHMH.|
|Declaration of NYC Health Commissioner Thomas Frieden filed in response to lawsuit.|
|Amici Curiae brief filed in support of DOHMH.|
|Sep 2007||U.S. District Court overturns §81.50.|
|Oct 2007||DOHMH proposes revised amendment to §81.50 of NYC Health Code.|
|Nov 2007||DOHMH holds public hearing on revised regulation.|
|Jan 2008||Health Board votes unanimously to approve §81.50.|
|Feb 2008||NYSRA files second lawsuit against DOHMH.|
|Apr 2008||U.S. District Court rejects NYSRA.|
|NYSRA files appeal with U.S. Court of Appeals (2nd Cir.).|
|Court of Appeals denies NYSRA request for stay, approves implementation of §81.50.|
|Calorie-labeling law goes into effect (three-month grace period for enforcement).|
|May 2008||U.S. FDA files brief in support of court decision.|
|Feb 2009||U.S. Court of Appeals (2nd Cir.) denies NYSRA appeal.|
|May 2009||President Obama names NYC Health Commissioner Thomas Frieden as head of the CDC.|
|Mar 2010||President Obama signs federal health care legislation creating national menu-labeling law.|
|Apr 2011||FDA issues proposed national menu-labeling guidance.|
This paper will analyze the genesis, rationale, deliberation, legal challenges, implementation, and lessons learned as a result of Section 81.50 of the New York City Health Code with a particular emphasis on how the original proposal evolved over time into its stricter and much more expansive final form, largely a result of backfiring tactical decisions by the NYSRA.
The paper will utilize archival research and academic publications, as well as interviews with a number of the key players involved throughout the process, including Dr. Thomas Frieden, former New York City Health Commissioner; Dr. Margo Wootan, Director of Nutrition Policy at the Center for Science in the Public Interest (the main advocacy group in support of the rule); and Dr. Marion Nestle, professor of food studies and public health at NYU and one of the nation’s leading scholars and authors on the role of food marketing in dietary choices. Attempts to contact the New York State Restaurant Association, which led the opposition against the calorie-labeling law, were not returned.
III. Background and Problem
According to the 2004 Community Health Survey conducted by the New York City Health Department, more than half of city adults were overweight (34.4%) or obese (21.7%) (Frieden, “Declaration” 3). The percentage of obese New Yorkers nearly doubled between 1994 and 2004 (from 12% to 22%) and, nationally, the percentage of obese Americans skyrocketed from 14.5% in 1971-1974 to 32.2% in 2003-2004 (2). Studies have shown that an unhealthy diet may be second only to smoking in importance as a determinant of health (Mokdad et al., 1239). Further complicating this public health crisis is how one epidemic – obesity – is driving another epidemic of even greater concern: the rapidly increasing rate of type 2 diabetes among New Yorkers, from 3.7% in 1994 to 9.5% in 2006 (Frieden, “Declaration” 7).
Public health officials and researchers cite two phenomenon that closely parallel the growing obesity epidemic since the 1970s: a doubling in the percentage of Americans who eat meals away from home (11) and a dramatic increase in food portion sizes offered by fast food restaurants (Young and Nestle, 238-239).
Compounding this problem is the fact that fast food options tend to be calorie-packed, energy-dense, accessible, and inexpensive (Hill et al., 853). For these reasons, low-income people tend to eat a disproportionately large percentage of their meals in fast food restaurants (Dolnick). For example, a Big Mac combination meal at McDonald’s – which includes the Big Mac sandwich, medium serving of french fries and 21-ounce soft drink – cost just $5.99 in New York City in 2008, but contained 1,130 calories, more than half the average person’s daily caloric needs (Farley et al., 1098).
Our recent economic troubles have only exacerbated these trends. One recent study, published in the Journal of the American Medical Association, argued:
“[e]conomic adversity induces consumers to replace nutritious but expensive produce with less costly, high-calorie, commodity-based products… In times of economic weakness and/or rising costs, consumers tend to trade down to lower price points rather than prepare food at home” (Ludwig and Pollack, 534).
Michael Jacobson, executive director of the Center for Science in the Public Interest, told The New York Times in 2009 that “[n]utrition is not the top concern of low-income people, who are probably the least amenable to calorie labeling” (Hartocollis).
While federally mandated nutrition labels are contained on food sold in grocery stores to better inform consumers about their food choices, no such information is required for food eaten in restaurants (Frieden, “Declaration” 4). Prior to the calorie-labeling proposal, some chains had voluntarily provided nutritional information, but a large Health Department survey of 167 randomly selected New York City fast food chains in 2007 found that, with the exception of Subway restaurants, fewer than five percent of customers reported seeing calorie information in the location they had just exited (Farley et al., 1099). This was an important finding since recent research found that the selection of high calorie, high fat items decreased from 37% to 24% when calorie information was provided (Burton et al., 1674).
It was this point that the Bloomberg administration’s Health Department decided to act, but they were picking a fight with a heavyweight industry group who had to yet to lose a menu-labeling fight, according to a March 2007 story in The New York Times:
The restaurant industry has successfully fought off efforts to impose menu-labeling rules in at least a dozen state legislatures. That includes New York, where such a bill failed to get out of the Assembly last year (Rivera, “Wendy’s).
IV. The Proposal
In an affidavit filed during subsequent litigation, New York City Health Commissioner Thomas Frieden offered a general explanation as to why his department chose to act on this issue:
The Board took this step because the Board and Department are charged with the prevention and control not just of communicable diseases, but also of chronic disease and its risk factors. This charge is addressed by educational and other means that improve the city’s environment in ways that will make it easier for New Yorkers to make the healthy choices needed to prevent or manage chronic diseases (“Declaration” 4).
Specifically, the department has jurisdiction to regulate all matters affecting the health of New Yorkers and may amend or supplement the New York City Health Code for the “security of life or health” with the full force and effect of law (Silver, “Menu Labeling” 3).
In an interview with the writer, Dr. Frieden elaborated in greater detail about what motivated his department to pursue calorie-labeling as aggressively as it did. While outside groups, such as the Center for Science in the Public Interest, had lobbied his office for some time to consider action, Frieden made clear that the decision to initiate this effort had come from within his department (Frieden, “Interview”).
Specifically, Frieden credited his department’s large restaurant inspection program as the main driver for more aggressive action stating that he wanted to ensure that the program not only prevented food-borne bacterial and toxic illnesses, but that it also promoted health more broadly. He noted that the calorie proposal was introduced to the Board of Health at the same time the artificial trans fat restriction was introduced, as both emanated from the Health Promotion and Disease Prevention division, but were done in close collaboration with the restaurant safety program of the Environmental Health division. This was predicated on the belief that the calorie content of food is the single most important piece of information for consumers to have in helping them make sound and healthy food choices.
In the end, according to Frieden, the calorie-labeling effort was not offered as a result of pressure from interest groups, nor was it driven by politics coming out from Mayor Bloomberg’s office. Instead, this was a deliberate and calculated effort to expand the traditional mission of the Health Department so that it could aggressively pursue actions to help combat some of the chronic diseases plaguing New Yorkers.
The original calorie-labeling effort was publicly announced by the Health Department on September, 26, 2006 and received strong public support. The proposed amendment would require that all restaurants part of a chain of 15 or more outlets nationally that serve standardized portions, and who have voluntarily made calorie information available, would be required to prominently display that information on its menus and menu board.
V. Deliberation and Approval
Despite broad popular support, the measure was eventually met with strong opposition from fast food chain restaurants and their trade organizations, most notably the New York State Restaurant Association (NYSRA) and the National Restaurant Association.
The October 30, 2006 public hearing would provide a window into the looming fight facing the Health Department as it proceeded with the regulation. Among those speaking was Mark Inzetta, a senior executive with Wendy’s restaurants. Inzetta largely focused his remarks on what he termed the “discriminatory nature” of the regulation since it applied only to the restaurants that had already made the decision to offer consumers nutritional information, and not all restaurants:
What concerns us here about this proposal is it would not apply to all New York City restaurants and, in fact, would apply to only a select few. Inexplicably, companies that refuse to make any nutrition information available would be entirely exempt from this regulation. Not only do we think this is unfair, but it’s counter-intuitive to what we believe to be the scapegoat of the Department of Health of increasing consumer education and therefore, creates an incentive for businesses which do not provide this information to not provide it in the future. In fact, some restaurants may consider taking out the information if this proposal were to pass. So if the goal is to empower New Yorkers to make better informed choices when dining out, this proposal, in fairness, should apply to all food service outlets in the City instead of arbitrarily applying it to just a small segment of restaurants (Transcript, 107).
Also raising concerns at the hearing were the two main industry witnesses: Charles Hunt, NYSRA executive vice president, and Sheila Weiss, Director of Nutrition Policy at the National Restaurant Association. Both raised objections that since many restaurants were already providing calorie information to consumers in the form they believed was most effective, local government should not meddle with that effort.
But their testimony stood out for the fact that both overwhelmingly focused on the proposed trans fat ban regulation, rather than calorie-labeling. A review of the hearing transcript showed that Ms. Weiss devoted just 20 percent of her 773-word remarks to calorie-labeling, while Mr. Hunt barely touched on the subject, allocating just 63 of his 1,014 words to it. Considering that the trans fat amendment would sail to approval and implementation with minor controversy in the subsequent weeks, while calorie-labeling would get mired in two federal lawsuits and a delay of over a year, the industry’s initial focus is, especially in hindsight, noteworthy.
In fact, most of the media coverage of the Health Department proposal leading up to the October public hearing focused mainly on the trans fat ban, not calorie-labeling. Though, not all involved in the debate would allow the media’s narrative to drive the story. In her own New York Times op-ed prior to the public hearing, Marion Nestle, NYU professor of food studies and public health and one of the nation’s leading scholars on the subject noted that the attention being paid to the trans fat ban was misplaced and overlooking the much more substantive and meaningful proposal on calorie-label:
Lost in the hoopla over the trans fat decision was a second proposal from the health department that might have a far greater impact: to require restaurants that offer foods and drinks made from standard recipes — McDonald’s and Starbucks, for example — to display calorie contents on menu boards.
For doing something about obesity, it’s the calories — not the trans fats — that count. Labeling restaurant calories is a good idea because nobody, not even a trained nutritionist, can compute the number of calories in a meal without knowing the type and weight of every ingredient that goes into it.
However, Frieden disagreed with this suggestion during his interview:
I’ve always thought that they realized that they couldn’t fight trans fat because they knew that fighting to preserve their right to put an artificial product no one had heard of – and was killing people – into food wasn’t a winner in the public’s eye. Plus, it was clear that we had full authority to do it in the health code. They were always going to challenge the calorie law. There was no question about that. Both public hearings and comments had overwhelming public support. Regarding trans fat, some industries and companies argued, with reason, that they needed time to transition, and we worked with them on that (Frieden, “Interview”).
During the period for public comment on the proposed regulation, the Health Department received 2,222 written comments, including an additional 45 people who spoke at the October public hearing. Of those 2,267 comments, 2,245 were in support and just 22 in opposition, a ratio of 100-to-1 (Silver, 1). Moreover, polling across the country consistently showed overwhelming public support for restaurant calorie-labeling (Friedman, 5).
On December 5, 2006, the Board of Health unanimously approved the measure ordering chain restaurants to make calorie information publicly available beginning March 1, 2007 (Board of Health). A 3-month grace period would be provided so that enforcement would begin on July 1, 2007. The one major modification from the original proposal that the Health Board agreed to – and one it would revisit the following year – was to allow businesses the chance to propose alternative ways to display calorie information rather than the manner designated by the city.
VI. City Council Power Play
Among the many challenges that the Bloomberg administration had to contend with in successfully navigating enactment and implementation of the calorie-labeling regulation was avoiding meddling political leaders and elected officials. In the days before the regulation was set to go into effect (during its grace period), several members of the New York City Council began to make public comments about their desire to rewrite and water down the Health Department’s calorie-labeling rules. According to a New York Times story, the action was spurred on by the National Restaurant Association (Rivera, “City Council”).
Specifically, on February 28, 2007, City Councilman Joel Rivera – then the chair of the Council Health Committee – introduced legislation that would lessen the burdens on restaurants as a result of the calorie-counting law. His plan would permit chains to display calorie data in brochures or on posters, as many major chains, like Wendy’s, were already doing at the time (Rivera, “Wendy’s”). Councilman David Yassky of Brooklyn co-sponsored Rivera’s legislation (Rivera, “City Council”). Advocacy groups were furious at the effort which was seen as nothing less than carrying the industry’s water. To that point, Rivera even announced his legislation at a press conference where he was joined by representatives of the National Restaurant Association (Press Release).
Rivera’s motivation to assist the restaurant industry seems to have come, at least partially, from his belief – and apparently those of other council members – that the Board of Health did not have the authority to act on its own and he wanted to prevent any unilateral action by an unelected government body. This sentiment was relayed by National Restaurant Association Vice President Tom Foulkes, during a question-and-answer interview with Paul Frumkin of the National Restaurant News, a trade publication:
[Q:] What convinced Rivera to craft this measure?
[Foulkes:] I think he realized the existing rule was going after one segment on this particular issue, and it won’t accomplish the goals the board said it would. Also, a lot of city councilmen don’t believe the board of health has the authority to create laws, so they want to stop that precedent. They also think it’s a true burden on business owners (emphasis added) (Frumkin, “Having Words”).
A senior advisor to Rivera would offer another reason for the action, stating “[p]eople going to Burger King are not the kind of people who care about the calorie count” (Gardiner). Meanwhile, the editorial board of The New York Times slammed Rivera’s effort, calling on the restaurants to “stop stalling, and get with the program” (“You Want Some Truth With That?”).
Yet, Rivera’s legislation hinted at a clash over the extent of regulatory powers possessed by Bloomberg administration agencies, especially the Health Department which had long acted on its own in the area of public health issues. Straddling the fence, City Council Speaker Christine Quinn was cautious in her response, stating only that she supported the Board of Health’s regulation, but would give Rivera’s legislation a hearing (Rivera, “City Council”).
In response to the coordinated action by the restaurant association and Rivera, Wendy’s restaurants pulled all nutrition posters from its 50 New York City locations the day before the March 1, 2007 deadline set by the Health Department. All chains which voluntarily provided calorie information on or after March 1 would be subject to the mandatory calorie-labeling on menus and menu boards (Rivera, “Wendy’s”). The following week, White Castle restaurants announced that it too would remove all data from its 35 city locations (Frumkin, “N.Y.”).
However, more than a month later, Rivera’s legislation had not advanced. In fact, no hearing has ever been scheduled (Rivera, “Survey”) and Rivera stopped pushing the issue publicly. By April 2008, following the court decision in the city’s favor, Rivera was firmly on board with the Bloomberg administration and Health Department as he was listed among the “supporters” in departments’ “response to comments” summary (Silver and Nonas),
VII. The Lawsuit
On June 14, 2007, the NYSRA filed a lawsuit against the New York City Board of Health in U.S. District in Manhattan seeking relief to prevent enforcement of the calorie-count regulation. The lawsuit asserted two claims: that the federal Nutrition Labeling and Education Act of 1990 preempted any local regulations when it came to food labeling, particularly as a result of the city’s decision to only target businesses who had voluntarily provided calorie information; and that the regulation infringed on its members’ First Amendment rights by forcing to:
“convey a message with which they do not agree; namely that the nutritional value of a given menu item can be represented by a bare declaration of its caloric content” (Complaint, 11).
During his interview, Commissioner Frieden noted that the NYSRA lawsuit was one of the most interesting experiences during his seven years leading the Health Department because it provided him a valuable insight into how the fast food industry communicated with its customers and how determined it was to prevent any interference from the outside, especially mandates by government. Specifically, Frieden highlighted comments in affidavits filed by officials from several fast food chains, including from Hector Munoz, Senior Director of Retail Image and Engagement at Burger King Corp., who offered the following insight as to why they opposed any meddling with its menu boards:
“the menu board is the single most valued piece of real estate in a Burger King restaurant. It is the most important way we communicate with our customers in the store about the products we offer and their price. It is what the customers look at, and it is what stimulate their decision to buy” (Silver and Nonas, 15).
This assertion, which other fast food chains largely mimicked in their own affidavits, shines light on what is clearly the main reason for the ferocious response by the industry once the Health Board approved the original calorie-labeling regulation. The menu boards were perceived as inviolable sacred ground and the companies were not going to ceded control over them without a fierce fight.
On September 11, 2007, U.S. District Court Judge Richard Holwell struck down the calorie-labeling law on the grounds that by limiting its mandate to only those businesses that were already voluntarily disclosing calorie information, it conflicted with the federal labeling law and was therefore preempted.
However, even more significantly, Judge Holwell specifically affirmed the authority of local governments to mandate calorie-labeling, thus opening the door to a much more expansive application of the regulation that could force all chain restaurants to display calorie counts, regardless of whether or not they had offered such information to the public in the first place:
[T]he Court concludes that the City has the power to mandate nutritional labeling by restaurants, but that it has done so in a manner that offends the federal statutory scheme for voluntary nutritional claims. Therefore, the City’s regulation, as enacted, is preempted by federal law. The Court does not reach the plaintiff’s First Amendment claims (Memorandum Opinion, “2007” 2).
VIII. Repeal, Redrafting and Implementation
Instead of appealing Judge Holwell’s ruling, the Bloomberg administration opted to quickly redraft the original proposal, not only to remedy the language per the court’s opinion, but also to broaden its mandate to force all chains to comply with the labeling requirement, as was clearly suggested by Holwell.
On the day after the ruling, Mayor Bloomberg wasted no time:
“Anyone who thinks we’re going to walk away from trying to tell the public what they’re eating and what it’s doing to them doesn’t understand the obligation this city’s Health Department has…We have to tell people how to lead better lives.” (“In Tug of War”).
As a matter of tactics, the decision by the NYSRA to appeal the regulation had backfired badly. Even though it had technically won the case, that designation was helpful only for the positive news stories it received in the subsequent days. In fact, Holwell’s ruling would turn out to be much worse for the NYSRA and fast food chains than if they had simply lost the case. Now, with a minor amount of redrafting, the Health Department would be able to mandate calorie-labeling on all chains, not merely a subset which were already disclosing information publicly. Commissioner Frieden acknowledged during his interview that, ironically, his department had believed the limited original regulation was going to be more defensible in court. This turned out to be the opposite of the case.
Moreover, the redrafting allowed the Health Department to scrap its previous willingness to allow chains to propose and potentially receive approval for alternate designs for displaying calorie information. Frieden would later say that while the original accommodation was well intentioned, it eventually led to “unproductive discussions with restaurants” (Farley, 1107). Now, given the green light by the courts to redraft a stricter and more expansive regulation, it simply dropped the alternate design option and instead instructed restaurants on how to display calorie information on its sacred menu boards, highlighting yet another consequence for NYSRA’s decision to file its original lawsuit.
Barely a month later after Judge Holwell’s ruling, the Health Department reintroduced the calorie-labeling rule on October 24, 2007. Following a period for public comment and hearing, the Health Board unanimously approved the revised rule on January 22, 2008, mandating that all chain restaurants with at least 15 stores would be required to post calorie counts on its menus and menu boards.
In February 2008, the NYSRA again filed suit in federal court, repeating its federal preemption and First Amendment claims. This time, all did not go well for them.
First, NYSRA found itself in the middle of a thicket of unsavory public attention after it acknowledged that it had paid money to Dr. David Allison, an obesity specialist, to file an affidavit with the federal court in January 2008 critical of the Health Department’s calorie-counting plan (Saul, “Conflict”). Allison was one of the few obesity doctors to side with the industry on the issue (believing calorie-labeling would create a “forbidden-fruit” dynamic among consumer causing them to eat even more of the high-calorie food).
However, the NYSRA never told the court, or anyone else, that Dr. Allison was a hired gun, not an independent expert offering unbiased opinion. Furthermore, Allison was the incoming president of the Obesity Society, a national organization that had been actively supporting the calorie-labeling law and was furious with Allison’s actions – paid or unpaid (Saul, “Menu Fight”).
Under pressure, Allison resigned from his incoming post and the significant amount of unwanted public attention to the matter did not help NYSRA win any converts to its side as the outcome of its second lawsuit was in the hands of Judge Holwell.
On April 16, 2008, Judge Holwell sided with the City on both counts, going so far as to call out the NYSRA for its seeming hypocrisy in arguing against some of the very theories it raised in its original lawsuit (Memorandum Opinion, “2008” 5). The final rule took effect on April 30, 2008. Later, the U.S. Court of Appeals for the Second District would deny NYSRA’s appeal, and despite its repeated efforts to delay implementation and enforcement of the rule, NYSRA opted against taking the matter to the U.S. Supreme Court.
IX. Analysis, Lessons and Criticism
One can argue that the fast food industry’s lack of traction on repelling what they viewed as an assault on their most vital communication link to their customers was the result of being caught flat-footed in the early weeks of the debate, rendering them unable to mount an effective pushback in subsequent months. As is often the case in political fights, the failure to launch an assertive response at the beginning of engagement is often fatal – especially when initial popular support is not on your side. Beyond allowing an opponent to begin galvanizing public opinion, a delay can also cause the media to downgrade any such belated fights as unworthy of front page attention. In fact, it is not unusual for a group to launch pre-emptive strikes even before a proposal is formally announced in hopes of gaining an upper hand once the public debate begins.
In this case, the fast food industry initially chased the wrong the target, were divided between those restaurants who were not opposed to labeling, but wanted control over how to display it (such as Wendy’s), versus those which were not interested in voluntarily participating in the first place.
During her interview, Dr. Marion Nestle made clear her strong belief that the restaurant associations were never interested in finding a solution to the obesity issues, nor were they ever prepared to meaningfully address the issue by way of disclosure beyond the voluntary efforts of some of its members. She framed the entire debate as a “classic example of industry versus consumer interests” and that the NYSRA “is notoriously uninterested in the health of consumers and this was a typical example of tactics. This time, they backfired. (Nestle, “Interview”).
Meanwhile, the Center for Science in the Public Interest (CSPI), a national public interest organization based in Washington, D.C., was the leading advocacy group pushing for calorie-labeling in New York City. According to their website, they describe their mission as follows:
The Center for Science in the Public Interest (CSPI) is a consumer advocacy organization whose twin missions are to conduct innovative research and advocacy programs in health and nutrition, and to provide consumers with current, useful information about their health and well-being.
In a brief interview with CSPI’s Dr. Margo Wootan, Director of Nutrition Policy, as well as in public remarks on the subject, she explained that her organization began working on nutritional labeling for more than 20 years, beginning with its successful efforts for a government mandate on labels on packaged food. In 2003, CSPI began an aggressive push for nutrition labeling at chain restaurants and since New York City’s effort was nation’s first, they played a very prominent and public role.
According to Wootan, her group met several times with Commissioner Frieden and his staff and urged them to target calorie-labeling. The media routinely cited Wootan and CSPI in its reporting on the labeling proposal and they were very active during the public hearing. Also, CSPI was one of the key players in the amici curiae brief (often termed a “friend of the court” brief) filed with U.S. District Court Judge Richard Holwell in support of the New York City Health Department during the litigation of the case (Amicus brief). Along with CSPI, the parties to the brief included U.S. Rep. Henry Waxman, who was the chief sponsor of the federal labeling act cited by NYSRA), Dr. David Kessler, former FDA commissioner at the time the federal law was enacted, and a variety of medical, academic, and advocacy groups and individuals, including Dr. Marion Nestle. The support provided by this group was a central piece to the litigation and the eventual ruling by Judge Holwell that opened the door to stricter and more expansive final regulation.
At the core of CSPI’s philosophy is that consumers have the right to know information that affects them, citing examples such as the mandate that automobile manufacturers must disclose the fuel-efficiency of their vehicles, the fabric make up and care instructions for clothing, and the water and energy consumption of countless home appliances to demonstrate that there is nothing particularly noteworthy about consumers knowing what is in the food they eat at restaurants. In contrast, given the serious issues that Americans face when it comes to managing their weight, monitoring their blood pressure, or treatments they are receiving for a host of medical issue such as diabetes and heart disease, labeling of food is simple common sense. Without nutrition information, consumers are deprived of a simple way of making informed choices and comparing options. This is particularly true given that one-third of all calories consumed are from eating out.
There is reason to believe that the effectiveness of the calorie-labeling law in the long term will prove to be less about the food choices that consumers make, than about the fast food industry’s decisions to provide healthier options and more reasonable portion sizes in the face of sticker shock from consumers who had no idea that a typical combination meal itself contains more than half the calories required for an entire day.
Both Dr. Nestle and Dr. Wootan have noted that in many instances where fast food chains greatly reduced the calorie content of many of their particularly offensive options – or reduced portion sizes – before having to disclose that information on its menu boards. Dr. Nestle in particular commented that reducing portion sizes is the best possible outcome that the industry could do, but acknowledged that customer would complain.
Finally, after serving seven years as Mayor Bloomberg’s first Health Commissioner, Thomas Frieden was tapped by President Obama on May 15, 2009 to be 16th director of the Centers for Disease Control and Prevention (CDC), where he remains to this day.
One of the enduring criticisms by Frieden’s detractors is that the aggressive actions taken by the Health Department during his tenure was little more than a “nanny state” run amok (Fickenscher, Goldstein). During the author’s interview with Frieden, he shared his thoughts on the accusation and what he believes is the proper role of government:
One fundamental role of government is to protect people from others, like drunk drivers and toxic polluters. Removing artificial trans fat is a newer application of this basic principle. No one ever went into a restaurant and ordered a plate of trans fat. If you see my American Journal of Public Health pyramid article, the concept of changing the default value is key to public health action. Fewer New Yorkers are having heart attacks now, but very few realize this is because restaurants have imperceptibly changed the oil.
Another fundamental role of government is to help people make informed choices by promoting open information. Package inserts for pharmaceutical products and nutrition facts panels are traditional examples. Menu labeling is a modern one.
Opponents to these actions can claim that the problem being addressed isn’t real, that the measure won’t be effective, or that it’s not the appropriate role of government. I don’t think any of these criticisms hold up in these two cases [calorie-labeling and trans fat ban].
Incidentally, we did quite a bit in New York City that wasn’t controversial. We drastically improved colon cancer screening rates, and established prevention-oriented electronic health records, for example. But these initiatives didn’t get much publicity because they weren’t controversial. Our approach to all issues was consistent. We needed to reduce preventable illness and death.
New York City’s successful development and implementation of its calorie-labeling law is an example of how local government can execute strong policy goals that can achieve public health benefits. In this case, a number of factors can be cited for the proposal’s success: the clear objectives set from the outset by Commissioner Frieden and the Health Department; setting realistic and attainable requirements for the restaurants affected; conducting considerable research on the proposal well before publicly discussing them; maintaining strong political backing throughout the process from Mayor Bloomberg; a willingness to circumvent potential political gridlock by utilizing existing regulatory authority rather than seeking city council approval; and maintaining the momentum to finalize the amendment, even while navigating legal hurdles that required redrafting the rule.
Additionally, Dr. Frieden has noted that given the political clout of the fast food industry, it is not surprising that an appointed body (the Health Department), rather than elected one (the City Council), was the first in the nation to mandate calorie-posting. Despite the efforts by some council members to assert jurisdiction and offer a business friendly compromise, the Bloomberg administration’s political deftness quashed the effort before it could build any momentum.
There is little doubt that the decision by the NYSRA to challenge the original proposal in the court was the key factor in the Bloomberg administration emerging from the process with a stricter, more expansive, and fairer rule that placed a mandate on all chains, rather than on a portion of them. Without the court’s intervention, it is possible that a larger number of restaurants (beyond Wendy’s and White Castle) would have exempted themselves from the posting mandate (by no longer offering voluntary nutritional information) and rendered the final regulation relatively toothless and ineffective, leaving many to wonder how the Health Department managed to fumble away a golden chance to add another tool to combating the obesity epidemic. Instead, New York City’s success proved to be a model for other states and localities, and eventually a similar provision to mandate calorie-labeling nationally found its way into the landmark federal health care bill that President Obama signed into law in 2010, which the FDA is currently finalizing.
As one would fully expect of any controversial public policy proposal, the original calorie-labeling amendment did change as it weaved its way through the approval process. It encountered obstacles, entrenched moneyed interests, lawsuits, as well as pressure from advocacy groups which pushed for the broadest possible regulation. However, in each instance of modification, the original proposal became stronger, tighter, and stricter. It morphed from being voluntarily applied to becoming a mandate on all chain restaurants. While its first iteration allowed restaurants to propose an alternative mechanism for display of calorie information, the final regulation removed that option and simply dictated how it was to be done.
Significantly, the steadfast backing of the Health Department’s actions at all times by Mayor Bloomberg cannot be overemphasized. As the figurative CEO of the City of New York, any hesitation by Bloomberg during some of these crucial phases might have provided critically needed oxygen for opponents looking for a way back into the game. They never got it.
Throughout this process, the Health Department, and the Bloomberg administration, was unbowed by the tumult and methodically plodded forward, seemingly to remain a step or two ahead of its opponents at all times, who often appeared flat-footed against the bulldog efforts of Commissioner Frieden and his team. The Health Department launched the original proposal with a punch (and kept punching throughout), kept elected officials who might try to tinker with the proposal (or took campaign money from the fast food industry) at bay, did not lose its determination and focus after the initial setback in the courtroom, and they made sure to incorporate public opinion into their broadside efforts against the opposition.
In the end, New York City’s ground-breaking calorie-labeling effort was a resounding success from a policy development and implementation perspective. Its public health implications remain to be seen, as positive changes in epidemics like obesity are not likely to be apparent in a matter of a few years. In fairness, New York City’s success was certainly aided by allowing the unelected experts to craft and execute policy, instead of relying on the circus-like environment that sometimes engulfs well-intentioned efforts when fed through the machine of elected politicians, always worrying about re-election, who are closely aligned with powerful moneyed interests which have a serious stake in the outcome. In this case, it worked.
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