TCS Daily


Remember the A La Mode!

By Radley Balko - May 22, 2003 12:00 AM

The fat cops are on the prowl again. Not content with the current spate of obesity-inspired lawsuits, "nutrition" interests have taken to the state legislatures, looking to pass "menu labeling" laws that will pave the way for, yes, even more lawsuits.

The state of Maine recently introduced legislation requiring all restaurant chains with 20 or more franchises to print nutritional information for all items listed on menus. The state of New York is considering similar legislation.

Now comes Texas, with a menu labeling bill sponsored by Rep. Dennis Bonnen, which just passed the Texas legislature's Public Health Committee. Rep. Bonnen's bill would require all restaurants with three or more locations in the state to label every menu item with its fat, calories, cholesterol, carbohydrates, fiber, sugar, and protein content - on every menu. It would also require every item on every menu that gets more than 1/3 of calories from fat to print the warning: "Eating Fatty Foods May Lead to Obesity." Failure to comply would result in a $100 fine and up to six months in jail - for each offense.

One expects this kind of big government nannyism from New England. But from Texas?

One problem with forcing restaurants to label menus the way, say, Chef Boyardee labels a can of ravioli, is that restaurant portions aren't standardized the way manufactured foods are. Forced menu labeling would rob restaurants and their consumers of any spontaneity with menu planning - daily specials and substitutions couldn't be offered until first sent to a lab for nutritional testing. Chefs and waitstaff would be forced to serve identically portioned slices of sirloin and identically-sized dollops of applesauce. Every side of steamed vegetables would need to be have the same number of broccoli stalks, carrot coins and corn kernels.

Even at fast food restaurants, where menus stay relatively constant from store to store, the number of actual fries you get per Happy Meal can vary from visit to visit.

According to restaurant industry advocate Rick Berman, the cost of compliance with laws similar to that introduced by Rep. Bonnen would be significant, particularly in a restaurant industry already limping from a poor economy. Restaurants would need to reprint menus, and the new menus would be longer. Most fast food restaurants would need to completely rebuild menu boards. Employees would need to be trained to pay meticulous attention to portion sizes. And every menu item - and any future changes to menus - would need to be sent to labs for testing. Consumers would find significantly less seasonal variety on menus at sit-down service stores.

But compliance costs aren't even the real threat.

The real threat comes from the consumer fraud lawsuits that will almost certainly come later. Forcing restaurants to label every menu item with detailed, specific nutritional tables is a mandate ripe for class actions suits when, down the line, a chain of restaurants or a laboratory inevitably miscounts by a fat gram or two, or an employee spreads a bit too much mayonnaise on a ham-on-pumpernickel.

In fact, it's already happened. The perennial fat police at the Center for Science in the Public Interest - one of the key interest groups behind the labeling legislation in Maine - just recently filed a lawsuit against McDonalds Corporation for mislabeling the serving size of its reduced-fat vanilla ice cream cone. CSPI based its suit on the serving sizes McDonalds publishes on its national website versus portions CSPI researches measured at two, isolated Washington, D.C. franchises.

The winners of these lawsuits aren't consumers - who at most would likely get a voucher or coupon for a free ice cream cone. The winners will be the trial lawyers, who will reap millions off the top for representing us, the victims, who - horrors! - got too much food for our money.

So why do these laws only target chain restaurants, and not the mom and pop shops?

The most obvious answer is that the big chains have the deepest pockets, making them ideal targets for the inevitable lawsuits. Second, there's higher potential for error. If the corporate headquarters sends all the menu items out for testing, but individual stores are dishing out the portions, there's a greater likelihood that, eventually, an employee will err - again paving the way for litigation. Targeting the big chains is also more politically palatable for proponents of menu labeling. Politicians and voters figure big, multi-store corporations can absorb the compliance costs of such legislation. Mom and pop diners, they figure, probably can't.

All of this is masked, of course, as a response to the obesity epidemic - an epidemic that's of questionable validity to begin with, and even conceding its validity, is at best only marginally connected to the recent trend among restaurants to give consumers more product for their money (which in most every other industry is generally considered a good thing).

Texas has long been associated with rugged individualism - frontiers and fierce independence. If there's one thing Texas history tells us Texans don't need, it's a nanny. But that's exactly what Rep. Bonnen's legislation would provide - a state government employed nanny telling Texans in big, bold letters that too many bacon cheeseburgers may lead to love handles.
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