by Deepak Gupta
In today's mail, I received my copy of the August issue of ABA Journal magazine, which has an article on the mandatory disclosure of calorie counts on fast-food menus. We've blogged several times here about the legal battle over the New York's first-in-the-nation menu labeling rule (here, here, and here), in which I represented Congressman Henry Waxman, former FDA Commissioner David Kessler, the American Medical Association, and a bunch of other health groups and professors of nutrition, medicine, and public health. The litigation involved constitutional challenges by the fast-food industry based on preemption and the First Amendment.
The ABA article quotes my modest defense of the policy against charges of paternalism -- it's just information, and if you want to go on eating high-calorie stuff you're free to do so. It also quotes industry lawyer Kent Yalowitz, who asserts that the rule is "untethered to any science whatsoever." But as Ezra Klein notes in a recent Washington Post print column (and on his blog), preliminary data from Los Angeles shows that calorie labeling on the menu may have a dramatic impact. Kent conveniently forgets that New York City produced strong scientific support in response to the industry's lawsuit. And the Center for Science in the Public Interest, whose Margo Wootan has been deftly leading the legislative advocacy on menu labeling nationwide, has posted a wealth of additional data. (In any event, as Richard Posner points out, the obvious impossibility of proving the net effects of the policy in advance of its enactment does not justify rejecting it.)
The disclosure of calories on chain restaurant menus is no longer just a question of local policy; it is now--due in no small part to Margo's efforts--a part of the pending health care reform legislation. If health care passes, so does menu labeling! What's remarkable to me is how quickly the policy has progressed in just a couple years -- from a mere proposal among public health advocates, to a controversial regulation in a single city, to a measure that's been adopted by local governments nationwide, to a component of one of the most important pieces of federal legislation in a generation. Even the chain restaurants are supporting the legislation (though of course they'd like it cover non-chains too and are motivated as much by a desire to preempt local variation as anything else). As a Washington Post editorial said over the weekend, it couldn't come soon enough.