Legally Blind

In a disappointing legal decision, Judge Richard Holwell has given the green light to the Department of Health's menu labeling scheme. As the NY Times reports this morning: "Under the rules, which the city’s health department revised after Judge Holwell struck down an earlier version last fall, any chain with at least 15 outlets nationwide would have to display calorie counts on menu boards, menus or food tags. The rules would apply to roughly 2,000 restaurants, or about 10 percent of the 23,000 in the city, the health department said."

In what is most discouraging, considering the legal evidence presented (outlined last week in the NY Sun), Judge Holwell apparently believes that the regulation will help to reduce obesity; "In a 27-page opinion, Judge Holwell accepted one of the city’s main arguments for posting calorie counts — that doing so would help reduce obesity, which city officials say has reached epidemic levels. “It seems reasonable to expect that some consumers will use the information” on menu boards and menus “to select lower-calorie meals,” the judge wrote. He added that “these choices will lead to a lower incidence of obesity.”

Which is why the FDA, when it looks to implement labeling requirements, employs much more rigorous standards-and looks to use a cost/benefit analysis to determine whether a rule's expense in implementation is worth the alleged health impact. As we remarked last week: "The problem lies with the fact that the health department is trying to use its own study, one that we excoriated ourselves last year, to establish that calorie posting will help people make better eating choices."

Holwell, however, believes that as long as some consumers use the info than the rule is good to go-and the fact that there's no evidence that the rule will have any scientifically reliable efficacy passes right over the judge's head. And he doesn't address any of the cost factors for local business. The really pertinent question here is: How much will compliance cost locally-owned fast food franchisees? And the companion query: How many people will actually read and use these calorie postings for healthier decisions? The two questions need to be examined and analyzed together in order to decide whether the rule makes good sense.

The court's ruling, which is being appealed, means that the DOH policy may be legal but the sheer legality doesn't mean that it makes good public policy sense. Anecdotally, it appears to be a good idea and, as the NY Daily News points out this morning. many fast food customers, unaware of the rule's byzantine details, believe that it will be a healthy policy: "Carol Dawson, 58, of Flushing, Queens called the plan "an excellent idea." Too often, she said, she orders by "the picture and my appetite. But this will raise my awareness."

Wait till she tries to decipher the calories when Taco Bell puts up a range of 400-2000 calories for twenty different kinds of burritos (since space makes a full item by item breakdown unfeasible). Wait till she waits and waits in line while confused customers ask some young counterperson about the hard to figure out calorie information.

This is a bad idea propagated by folks who haven't eaten in a fast food restaurant in twenty years and would be happy to see them all (along with the jobs ) disappear; and be replaced by fruit and vegetable peddlers. We can't wait to see the self-serving study that will emerge from all of this. One thing's for certain, it won't pass any peer review unless the peer in question is the peerless Judge Holwell.