On May 5, more than seven years after it was signed into law, calorie labeling on menus will take effect. Unless, with just weeks remaining, Congress delays and dramatically weakens the provision at the behest of the pizza industry.
The law, which passed as part of the Affordable Care Act, was intended to help beat back the obesity epidemic by requiring chain restaurants with more than 20 outlets to clearly label the number of calories contained in each item: 1,400 calories in Applebee's Oriental Chicken Salad, for instance, and 350 in a slice of a medium Domino's Meatzza pan pie.
Since then, chains such as Panera, Starbucks and McDonald's have complied with the law and posted calories prominently on menu boards. But the pizza industry, led by the American Pizza Community, has continued to fight implementation. It has pushed for an alternative bill, the Common Sense Nutrition Disclosure Act, that would postpone and gut some provisions.
Under the bill, restaurant chains that receive at least 50 percent of their orders from off-premises, via, say, phone or an app, would not have to post calories in their stores. In other words, takeout restaurants would get a pass. Even if they did disclose calorie counts, they would no longer have to list the total calories, only those in a single serving, the size of which would be determined by the restaurant.
The Common Sense Nutrition Disclosure Act has not gotten a vote in either chamber this session. Supporters, however, are working to slip it into the 2017 appropriations bill, which must pass by April 28 to keep the government running.
"The pizza industry has fought this at each step of the way, and here we are four weeks away from when the law takes effect, and they're still lobbying to keep this information from their customer," said Margo Wootan, director of nutrition policy at the Center for Science in the Public Interest (CSPI), a nonprofit advocacy group that supports menu labeling.
Pizza companies are not big political donors. In 2016, the industry made only about $650,000 in contributions, according to the Center for Responsive Politics, with most of that going to Republicans. But the American Pizza Community (APC) - motto: "Promoting pizza as a shared meal in communities everywhere" - is a persistent presence on the Hill. Formed in 2010, the coalition represents some 20,000 pizza restaurants, including Domino's, Papa John's and Little Caesars. APC is concerned with issues such as franchising regulations and "promoting pizza goodness," but spokeswoman Christy Moran said the organization's "driving force" is to make menu labeling more flexible.
Each year, the APC hosts a meeting with members of Congress. In late March, , a delegation visited the offices of Rep. Cathy McMorris Rodgers, one of four elected officials who introduced the Common Sense Nutrition Disclosure Act, and Senate Majority Leader Mitch McConnell, R-Ky., among others.
The APC does not object to menu labeling. In fact, it supports a national standard. But the "one-size-fits-all solution doesn't fit everyone," says Tim McIntyre, APC chair and executive vice president of communications and legislative affairs for Domino's.
Pizza, he argues, is special because of the number of toppings and possible combinations. Domino's, for example, offers five types of crusts (hand-tossed, gluten-free, thin, handmade pan and Brooklyn), five levels of cheese and 30 toppings, making it difficult to list calories on an in-store menu board and pointless considering that 90 percent of orders come in over the phone or online. According to the APC, updating and maintaining menu boards with calorie counts would cost a store between $3,500 and $5,000 a year.
Putting calories on the Internet makes far more sense, says McIntyre. Domino's, he notes, has posted calorie information on its site for more than 13 years. "What we are trying to do is provide a common-sense solution by putting the information where most of our customers are."
But the Food Drug Administration, which will enforce menu labeling rules, says a pizza chain is only required to provide calorie counts on menus the chain currently has, whether its menu is paper or some other format; there is no requirement for a chain to create a menu or have in-store menu boards. FDA spokeswoman Deborah Kotz also disputed the pizza industry's claim that it would not be able to advertise as it currently does on billboards without posting calorie information. In response to the pizza industry's charge that employees who put too much pepperoni on someone's order could be held criminally liable or fined, as the industry claims given the made-to-order nature of pizza, Kotz said, "The regulations allow a range of calories to be placed on the menu to address precisely this situation. Additionally, the agency plans to spend the first year on education and outreach, not on enforcement."
Nutrition advocates allege that industry objections are a bogus attempt to wriggle out of labeling requirements that offer customers a chance to make healthful food choices outside the home. According to the USDA, 13 percent of Americans, or 41 million people, eat pizza on any given day. Among adults in that group, pizza contributes 29 percent of their daily calories and 38 percent of their daily sodium intake. That "pizza goodness" that the APC promotes is not as good as they would like people to think, says CSPI's Wootan. "It's white flour, salty sauce and fatty cheese."
Pizza restaurants already have extracted a concession from the FDA that allows them to show the calories of a slice, rather than the whole pie. Posting the calories of an entire pizza, the agency agreed, might cause sticker shock or confusion, since few people eat an entire pizza in one sitting.
But the Common Sense Nutrition Disclosure Act goes further, allowing chains to list the calories by serving size - set at their discretion. This means that, at least in theory, a chain could decide that a high-calorie item has multiple servings to lower calorie count: A bakery, for example, could list the calorie count on a cookie as 200 calories per serving without disclosing that the serving is half a cookie. A pizza chain could calculate the calories in an eight-slice pizza based on 10 servings.
When asked, Domino's McIntyre said his company's intention is to list calories by the slice or the serving, which according to its own research is around 2.2 slices. The company's online Cal-o-Meter lists calories by the slice. But its sandwiches and pasta-in-a-bread-bowl entrees are labeled as two servings - with calorie counts given for just one of those servings - even though many people would typically view a single sandwich or entree as a portion for one.
There is some debate about whether menu labeling works. A number of reports have suggested that posting calories results in little or no change in consumer choices. But a study in New York City, which in 2008 became the first jurisdiction to mandate calorie labeling, found that 15 percent of customers reported using menu labeling and purchased items with 106 fewer calories in a fast-food lunch than those who did not see or use the calorie information. An analysis of 100 million transactions at Starbucks, which introduced calorie labeling nationwide in 2013, showed that when calories were posted prominently, the average number of calories per transaction fell by 6 percent.
Moreover, menu labeling affects corporate as well as consumer behavior. Eighteen months after King County, Washington, mandated menu labeling, a study found that entrees at 37 chain restaurants had fallen by an average of 41 calories.
That may not sound like a lot, but experts estimate that the obesity epidemic is attributable to the per-person consumption of about 100 extra calories a day.
"If we can take some calories out from changes in consumer behavior and some from reformulations, we'll be on our way," Wootan said. "But that will only happen if companies give this information to their customers."
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This story was produced in collaboration with the Food & Environment Reporting Network, a nonprofit investigative journalism organization. View their work at thefern.org.