Pizza restaurants break from restaurant lobby to challenge FDA’s menu labeling rule.
On an average day, more than 40 million Americans will consume pizza. However, unlike in many restaurants where customers order in person from a limited number of options, consumers place 90 percent of all pizza orders over the phone or online, and they may order pizza in one of 34 million different combinations.
In April 2011, the FDA published a notice of proposed rulemaking on menu labeling in the Federal Register. The proposed rule would require restaurants and other similar retail food establishments with 20 or more locations to disclose the number of calories in standard items on menus and menu boards.
Perhaps fulfilling the idiom that politics makes strange bedfellows, the National Restaurant Association, which advocates for restaurant and food service industry interests in the political arena, praised the proposed rule in its comment in July 2011. It supported construing the phrase “similar retail food establishments” as broadly as possible to ensure that all consumers could make informed food choices. The Association believed that a uniform national standard for nutrition disclosure was preferable to a labyrinth of diverse state and local regulations for its constituents.
Not everyone was pleased, however. A coalition of pizza chains banded together to form the American Pizza Community (APC), dedicated to carving out a pizza-based exception to the menu labeling requirements. The APC viewed the National Restaurant Association’s support of the proposed rule as abandoning its interests and capitulating to the FDA.
For Lynn Liddle, an executive at Domino’s and chair of the APC, it is illogical to clump pizza establishments with other restaurants because of the way pizza is ordered. Liddle explained that, because of the millions of potential pizza combinations, accurate menu calorie counts would be “near impossible.” Liddle further argued that, if anything, restaurants should list calorie counts by the slice, not by the entire pie, because people typically consume only two slices in one sitting.
Ron Berger, the chief executive officer of Figaro’s Pizza, another APC member, was as flummoxed as Liddle. He described adding menu boards with calorie counts that no one sees—because the vast majority of customers are not physically present at the pizza establishment when they place their order—as the height of bureaucratic absurdity.
Much to the ire of the APC, however, when the FDA issued its final rule on menu labeling in December 2014, pizza establishments received no special treatment. Ultimately, the FDA rule covers all retail food establishments that sell “restaurant-style food.” Pizza establishments must add calorie counts to their in-store menu boards to be compliant.
But the fight is not over. Though the rule was scheduled to go into effect at the end of this year, pressure from some members of Congress recently forced the FDA to delay implementation until December 2016.
Even before the FDA announced the delay, the APC was lobbying Congress to pass the Common Sense Nutrition Disclosure Act of 2015. The Act would permit food establishments that generate a majority of their business from orders placed over the phone or online to disclose nutrition information on a “remote-access menu,” available on establishment websites. The Act was introduced in the House of Representatives in April and has since been referred to the Subcommittee on Health.
In the end, the APC and its members remain adamant that more sensible menu requirements for pizza establishments are needed, even if those requirements are late and served cold.
This is part three of a three-part series featuring winning essays of a Penn Law administrative law writing competition.