Nexus: Chapman's Journal of Law and Public Policy

This year, many Californians may have noticed that the restaurants they frequent look somehow different. The change is not immediately obvious; the ubiquitous red and yellow palette that adorns the logo and exterior of their chosen restaurant chain remains, and for the most part, the interior has the familiar sights and smells. It is only when the patron takes a glance at the menu to make sure that their usual number four hasn’t been replaced or risen in price again that they notice, in “clear and conspicuous size and typeface”, an extra set of numbers. The sudden panicked fear that their five dollar meal has somehow doubled in price in the last week quickly subsides when the patron realizes that these extra digits have nothing to do with their wallet. Instead, these merely represent the number of calories contained in that particular menu item. That is, the thousand plus calories that are about to be consumed.

For some, this may trigger another sudden thought. It may be an incredulous “There’s how many calories in my double bacon western cheeseburger?” Or it may be a rush of guilt when, upon a vague recollection of the FDA daily recommended allowances seen on the standard nutrition information label, that they realize that their lunch will soon take up more than half of their 2000 calorie diet. In any case, the customer now knows more about their meal than they might want to know, and in the hopes of the California legislature, they are now equipped to make more informed decisions about the food they purchase.

Senate Bill No. 1420, which added Section 114094 to the California Health and Safety Code, was signed into law by Governor Arnold Schwarzenegger on September 31, 2008, and requires that fast food and other chain restaurants with 19 or more locations within California to post calorie content information for standard menu items on menus, menu boards, and display tags. The law was implemented in two phases, the first being that by July 1, 2009, such food facilities had to at least provide a brochure, if the restaurant does not provide sit-down service, or a menu, brochure, or table tent if the restaurant does provide sit-down service, which contains the nutritional information of menu items. Additionally, fast food facilities that have a drive through area were required to display a notice of, and produce upon request, a brochure of nutritional information. The law took its full effect on January 1, 2011 when restaurants were required to comply with the above mentioned menu display provisions.

The patron that believes ignorance is bliss could still get their food guilt free on the go, seeing as a drive through still only has to provide a brochure to be in compliance with the law. However, the California legislature has taken note of fast food customers’ tendency to “make it a combo” or “supersize it” by requiring in-store menus to include the minimum and maximum amount of calories next to a standard menu item that is a combination of at least two standard menu items. Of course, not all establishments that provide food are subject to § 114094, and facilities such as farmer’s markets, school cafeterias, and grocery stores (except for separately owned food facilities that are located within the store) are exempt.

The bill was not without its opposition, though. The original bill, Senate Bill 120, was vetoed by Governor Schwarzenegger on October 14, 2007, and had been opposed mostly by lobby groups associated with the restaurant industry, so that individual restaurants would not have to tarnish their reputation as stalwarts of health and nutrition issues. Schwarzenegger’s reasons for vetoing the bill included the assertion that it was not an effective way to educate Californians about healthy living, and that restaurants have been and should continue to provide menu labeling on their own. Aside from the “nanny state” concerns, it could be argued that such regulations would unnecessarily interfere with the business and potentially diminish the profitability of the restaurants subject to the legislation, harming not only the large food corporations but also the individual proprietors and franchisees. Taken to its logical extreme, this would mean a further dismantling of free enterprise and a chilling effect on the entrepreneurial spirit.

Nevertheless, menu labeling is now the law in California amid rising concerns over obesity and its related medical issues, though California Health and Safety Code §114094 may be preempted by the Patient Protection and Affordable Care Act (PPACA) passed by Congress last year. In fact, California Senate Bill No. 20, which would repeal §114094 and require food facilities to be in compliance with the federal calorie content disclosure requirements (which do not substantially differ from current California law) is currently awaiting the signature of Governor Jerry Brown.

Thus, menu labeling appears to be here to stay, as the PPACA or §114094 would most likely survive constitutional challenges on free speech and equal protection grounds. Whether the regulations will have any impact on the obesity epidemic and encourage healthier eating habits remains to be seen, but at the very least, restaurant patrons are now provided with nearly unavoidable information on the health toll they might be paying for their quick and convenient food choices. From purely anecdotal evidence, patrons themselves may not be welcoming of such changes because they already know that what they are eating is not necessarily a shining example of a balanced meal, and would not like to be reminded of that every time they indulge in their favorite sin food. Yet, the fact that such a grievance exists demonstrates that menu labeling laws have made their impact on patrons by making them fully comprehend how large of an impact their eating habits may have on their health.

Sources:

Cal. Health & Safety Code § 114094 (West 2009).

Yale University, Rudd Center for Food Policy and Obesity, A Case Study of California’s Menu labeling Legislation (2008), http://www.yaleruddcenter.org/resources/upload/docs/what/policy/CaliforniaSB120MenuLabelCaseStudy.pdf

Christine Cusick, Menu-Labeling Laws: A Move from Local to National Regulation, 51 Santa Clara L. Rev. 989, 1008 (2011)