Fuzzy Logic

Why would New York City pressure chains that already provide nutrition information but excuse independent restaurants that do not?

By Scott Hume, Editor-in-Chief -- Restaurants & Institutions, 3/15/2008

Last year was the 50th anniversary of Burger King’s introduction of the iconic Whopper burger, which the "Have It Your Way" chain has determined can be prepared 221,184 ways, depending on condiment choices.

Beyond being interesting, that staggering number of variations is significant because it helps explain why a restaurant would have difficulty providing an exact calorie count for menu items. A fully dressed Whopper has 655 calories. But exclude the mayonnaise and the count drops to 495; request extra mayonnaise and a Whopper could have more than 800 calories. You get the point, but Dr. Thomas Frieden, New York City’s health commissioner, does not.

Last year, New York City amended its health code to require restaurant chains with more than 15 units to include on menu boards calorie counts for items. The rule didn’t apply to independent restaurants, which The New York Times estimated account for 90% of the city’s eateries and which generally offer little or no nutrition information to guests. The rule didn’t even apply to all chains, just to those that already provide calorie counts or other nutrition data in an alternative format, such as on wall posters or in in-store brochures.

In other words, restaurants that didn’t or couldn’t provide nutrition information were fine as they were; restaurants that already had gone the extra step to help customers understand what they were eating were told to do something more, something clearly unworkable. When Wendy’s and other chains protested that the proposed menu-board requirement was unnecessary, Michael Jacobson, executive director of the Center for Science in the Public Interest, howled that restaurant chains want to "keep you in the dark" about nutrition.

New York City’s (and Jacobson’s) thinking is nonsensical. Worse, it won’t go away.

Last September, U.S. District Judge Richard J. Holwell struck down the measure, ruling that several provisions already were covered in federal statutes. But Dr. Frieden is back with a reworked rule making the same demands about menus but this time affecting national full-service chains as well. At press time, Judge Holwell was hearing arguments about the revised rule, which, if not thrown out, will go into effect March 31.

New York City’s curious thinking already is being swallowed elsewhere. West Virginia state Sen. Dan Foster last month introduced a bill mandating calorie disclosure on in-store and drive-thru menu boards. "It’s been shown that when you have this point-of-service information, the average person will make a choice that involves fewer calories," Foster told the Charleston (W.Va.) Daily Mail.

Foster didn’t say or wasn’t asked where this has been "shown." But I’m betting that the Whopper will keep on celebrating birthdays.