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Calorie counts on restaurant menus could disappear if the Affordable Care Act is rolled back

Health Policy

In case you’ve been living on the moon: Congress took one giant leap for small government on Thursday in its effort to repeal President Obama’s Affordable Care Act (ACA). As the Associated Press reported, in a 51-48 vote, the Republican-run Senate approved a budget that will provide special rules allowing the repeal vote to take place with a simple majority, rather than the 60 votes typically required. Because the Republicans currently control 52 of 100 Senate seats, this also means they’d be able to neuter the ACA without any support from Democrats.

By now, we’re pretty used to the bi-partisan picking over repeal-related unknowns. And the marquee schisms have been well-covered: repealing without a replacement; protection of key provisions for mental health and family planning; and preventing changes to Medicare and Medicaid. We won’t tread similar ground here. But one thing we have been watching for are potential changes to the ACA that could have an effect on the way Americans eat.

One major (but somewhat nascent) change to the foodservice industry that has yet to prove its real impact on public health: the menu calorie count.

In its article published Thursday, “Health Law Sleepers: Six Surprising Health Items That Could Disappear With ACA Repeal”, Kaiser Health News detailed the possible demise of one major (but somewhat nascent) change to the foodservice industry that has yet to prove its real impact on public health: the menu calorie count. Should the ACA be dismantled, that change, which is now a federal law, could disappear.

Last year, we marked New York City’s passage of the calorie-labeling law a “major food milestone” on our timeline of cultural, regulatory, and technical change over the last two decades. (You can see the other milestones here.) When it became official in 2008, the law required that chain restaurants with 15 or more locations list the calorie count of their menu items at point-of-purchase, where customers could see them. We made the law a milestone for two reasons: 1) The New York City Board of Health’s decision–which was officially handed down in 2006–was the first of its kind, and 2) it encouraged a wave of similar reforms in other cities and was eventually included in the healthcare overhaul of 2010.

These rules, three years past the point at which they were released, haven’t even been fully implemented across the country.

The final menu labeling rules were released in 2014, delayed in part by the Food and Drug Administration’s (FDA) efforts to heed retailers’ concerns about the burden of meeting their portion of the rule requirements (which had mostly to do with selling away-from-home foods). As U.S. News & World Report noted, restaurants and retailers originally had until 2015 to comply with the rules. The FDA pushed that deadline back to the end of 2016, and then FDA did it again.

The new compliance date is May 5, 2017. But here’s the problem: These rules, three years past the point at which they were released, haven’t even been fully implemented across the country. Which means we haven’t yet had a chance to do any substantive qualitative analysis on how effective they are (or aren’t) at impacting consumer choices. As the Kaiser piece reported, only one meta-analysis has been done on whether just seeing a high-calorie count listed next to a menu item prompts us to choose a lower-calorie option, and that was before the law went into effect. So what do we know at this point? Well, only what we don’t know.

Of course, it remains to be seen whether a full-scale ACA rollback is immanent or whether parts of the law will remain intact, while others go up in smoke. And it’s hard to know who to hold accountable at this point for the fact that a real, unprecedented public health reform may never have had the chance to actually reform the public’s health. Is it the restaurant industry and FDA for wrangling so long that the rules are now in jeopardy as part of a repeal package? Or the repeal-happy pols who may not have thoroughly considered all that gets swept out with the sweeping change?

Either way, I’m reminded of Joni Mitchell here, and picture her singing to both sides on this one: “Don’t it always seem to go/That you don’t know what you got/’Till it’s gone?” Yes, it seems to go that way.

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Kate Cox

Kate Cox covers the secret life of the supply chain as editor for The New Food Economy. In her former life, she was a freelance health reporter for radio and text. Follow her @thekatecox