Putting the Horse Before the A La Carte

In the aftermath of the judge's decision to throw out the city's menu labeling rule, the speculation is increasing that the battle may have only begun. As the NY Times' Ray Rivera wrote yesterday (and Rivera has a keen eye for the issue), "The restaurant industry seemed buoyed when a federal judge this week struck down a city health regulation that would have required nearly 2,400 New York City restaurants to post calorie information on their menus. But the ruling may backfire on the industry, leading to a broader range of restaurants’ being bound by a nearly identical menu-labeling requirement."

Which will only mean that the fight will continue to escalate, especially if the city widens its scope to include all 23,000 local eateries. Lost in the legal musings, however, is the philosophy behind the mayor's plan to make all of you eat your spinach. Clearly, Bloomberg believes that it is the role of government, in a paraphrase of Rousseau, to force you to be healthy. As he told the Times: “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,” Mayor Michael R. Bloomberg said yesterday. “We have to tell people how to lead better lives.”

Which begs the question whether the Department of Health knows how best to do all of this education. Judging by the nature of the department's cockamamie menu rule it hasn't got a clue. After all, as the NY Daily News reported yesterday, most New Yorkers don't have any idea about the calories contained in what they're eating, and if pressed to explain the importance of this calorie information we believe the overall ignorance of this basic nutritional information would be breath taking. Put simply, the information does no good without the appropriate health education that would allow folks to make healthier choices.

And we haven't even gone into the fact that the DOH rule excludes any other kinds of health information being posted-information that many of the fast food chains already have on their web sites or in store brochures. Calorie counts, and calorie counts alone can be confusing and misleading, and this is on top of the fact that the city has no social science research that indicates that posting will lead to better eating habits.

On top of this, the rule itself is so bizarrely constructed that confusion will inevitably reign. As we have commented before, the fact that the chains, because of the multiplicity of offerings, will be forced to post a range of calories (Burritos-400 to 1500 calories), will make the information simply unusable. In addition, the department will not force eateries to post any condiment information which will add to the confusion when a customer chooses the grilled chicken salad-perhaps at 400 calories-only to add on dressing that effectively (and unknown to the eater) doubles the caloric intake.

Thee social experiment here is not without unintended consequences. It will cost the industry millions of dollars in compliance costs yet the DOH, unlike the FDA, never even bothered to do any cost benefit analysis that is required under federal regulations (something Judge Holwell seems to ignore in his questionable ruling). In our view, if the cost of compliance costs one kid an after school job then this whole experiment wasn't worth it. Every one's concerned with health, but the mayor doesn't seem to be concerned with the health of neighborhood business.