Federal Nutrition Labeling - Exemption from Preemption?

YES!  I know that the FDA released the final rule for the national restaurant menu and vending machine nutrition (i.e., calorie) labeling law.  I haven't blogged about it yet because I was a little busy and I was trying to find out more, if I could, about the preemption piece.  To be clear, the final rule does a lot of what public health advocates, such as myself, hoped it would do and importantly, it includes movie theaters and prepared foods at grocery and convenience stores. Many reporters and bloggers have been talking about the final rule, and I hope that my post offers a little more than the usual fare (pun intended).

The FDA has a good Q and A page where you can learn more about which places will have calorie info available for you.  Click here to see and search the Q and A.  I went to the website myself to see if I could find out about bowling alleys, which I consider a caloric cesspool; and I found this beautiful paragraph

Establishments such as restaurants that are quick service and/or sit-down, food take-out facilities, pizza delivery establishments, food facilities in entertainment venues (e.g., movie theaters, bowling alleys), cafeterias, coffee shops, superstores, grocery and convenience stores, are covered if they meet the criteria listed above. 

Now there are two important qualifiers to the rule and as I've learned from some friends in King Co Washington and Philadelphia PA; its not as simple as it first seems.  I also spoke - through email - to a legal counsel at Perkins Coie LLP in Colorado.

1) The rules only apply to businesses with 20 or more establishments (re the 'criteria listed above' comment in the FDA paragraph I quoted). So YES to McDonalds and AppleBees and no to that quaint family owned bistro by your house. Yes to the AMF bowling alley with more than 300 lanes in the USA, no to the vending company with 10 machines. [I cannot wait to see the menu boards at bowling alleys (maybe my sister will send me a picture!).  I suddenly feel compelled to research how calorie laws affect the eating habits of bowlers!]

2) As the NRA hoped, the final rule does preempt the 15 or so existing state and local menu labeling laws (there are no vending laws to preempt). On the face of it, preemption means that no state or local law can be different from the national law. The national law says the menu boards, food tags and print menus must list total calories for each item - next to the item and in font the same size as the font listing the price; establishments also have to provide a statement regarding the standard 2000 calories a day contextual statement, and provide additional nutritional information in print, upon request. (Frequent readers of my blog know I think the contextual statement should say many people need closer to 1500/1800 calories a day, but it doesn't).

These 2 things (businesses included and preemption) play into each other in a way you might not expect, and in a way I didn't really see until someone pointed it out to me.  First, it is believed that a restaurant under the jurisdiction of the federal law, like AppleBees, cannot be made to display anything more than calorie content. Two local laws that I am aware of, one in King Co Washington and the other in Philadelphia PA, mandate that restaurants of certain size, also display fat grams and sodium mg on their print menus. It is possible that the federal law has a floor preemption instead of a ceiling.  IN other words, the law could mean that restaurants have to have calorie info but state and local laws could require more.  Most people (including two lawyers) have assured me that the preemption is a ceiling and states/localities can't require more than calorie disclosure. States and localities who want to force restaurants, by law, to disclose other nutrient information can petition the FDA for an exemption from preemption (great phrase!).  Stay tuned for more on King Co and Philadelphia's laws.  I will say that Philadelphia has a strong health related case for forcing the disclosure of sodium, and they know it.

But here is the clever part(and I am not sure who bested who on this one, the FDA or the National Restaurant Association).  States and localities can require establishments that are not under the FDA rule (i.e., local, small chains) to comply with a more involved law - and establishments that are not under the FDA's jurisdiction can OPT IN to the FDA rule.  Restaurants (or vending companies for that matter) that operate less than 20 establishments can make themselves fall under the FDA law.  If they opt in, then they cannot be targeted by state and local law.  SO, the new rule actually encourages restaurants to get on board because it can protect them from having to disclose, on their menu and menu board, more information. That sort of thing was exactly what the Restaurant Association was trying to shield their members from - having to comply with a patchwork of laws.


*** BTW making a company tell its customers what is in the products it sells is NOT an infringement on liberty!  Watch out for that kind of fear mongering spin - consumers have always had a right to know the contents of their purchases.

Can You Trust Your Vegetables?

I am not sure if I can return to daily or regular blog posting, but I do remain your observant food policy, diet quality advocate.   

Two recent observations are of particular importance when it comes to dining out.  IF you are interested in avoiding extra calories from saturated fat or sugar than they may interest you.

1) Cracker Barrel soaks its carrots in sugar.  I was told this by a spouse of an employee.  The person shared that Cracker Barrell is set to post all calorie information on its menus in January (to conform with the national menu labeling law).  My informant told me that the chain was changing some of its items in order to get ready.  I laughed, saying, surely there wasn't anything on the menu that wasn't loaded in saturated fat.  Then she mentioned the vegetables and I said, oh BUTTER and she said NO, Sugar!  I was stunned.
2) Elsewhere: Steamed vegetables may come served in butter unless you specifically request otherwise.  Sometimes butter free isn't an option.  For example, I was at a restaurant/sports bar called Kickback Jacks and the menu offered steamed vegetables.  I ordered these, but just to be safe, I added that I did not want any butter on them.  The waitress came back to the table and said that the cook said that was not possible.  The vegetables were already in the kitchen sitting in butter.  He did offer to rinse them off but could not guarantee that they would be butter free.  On the positive side - the waitress admitted that.  I am not unhappy if a restaurant cannot oblige me, but I am angry when they try to fool me. (I have had vegetables served "dry" but somehow glistening and greasy). For this dinner, I simply chose a side salad instead.  It was a very nice salad served with a nice balsamic vinegar.  (Note: A tablespoon of butter has over 7 grams of saturated fat)
  

Ridiculously Excessive

USA Today published a story that emphasizes an ongoing problem that we have with eating out in this country. For some reason – especially at restaurant chains- certain dishes have an inordinate amount of fat, sodium and calories. The extra comes from cooking butters, oils and sauces in such quantities as to be ridiculous and unrelated to flavor enhancement.

This type of information could be used to support the legislation for point of ordering or point of purchase - nutrient information. I use information like this to inform my decisions on where to eat out and how to order when I do. I offer the information below to address eating out on my website:

DINING OUT
When eating your meals away from home there are a few things that you can do to keep them low in fat and calories. The main thing to do is stay in control! It is no secret that restaurant foods are served in abundance with excess calories mostly from fats and sugars. The American Heart Association is one of many organizations that offer advice on how to dine out and stay healthy. Weight Watchers is another place where you can get trusted advice.
See online menus before you choose a restaurant or before you go to a restaurant someone else has chosen. If you already know what you are going to order you can overcome some of the temptations.

Try these Tricks – Ask for your food to be cooked without oil, fat or butter. Not so brave? Ask that it be cooked with very little OFB. Or ask for the sauce to be served on the side. Ask for your fish to be broiled or grilled. If your food comes soaked in oil, dab it with a napkin and remove 100s of extra calories. My favorite meals to order out are grilled tilapia or mahi mahi and steamed vegetables. I always tell them not to add OFB. When at an Asian restaurant I ask for shrimp with mixed vegetables steamed with sauce on the side. Often my meal comes in a bamboo basket and is the envy of everyone at the table! I also will order grilled or broiled fish or shrimp on a bed of lettuce and tomato. (make sure you ask what comes on the salad – leave the cheese and croutons behind) A great dressing is balsamic vinegar – not a vinaigrette, just the vinegar. Or bring along your own Walden’s Farms near calorie free dressing.

Be assertive (it’s your money and your body!) – but be nice. I always tell the server that I have special dietary issues, or allergies and it is OKAY if the chef can’t do what I want, I have a plan B. I would rather they say they cannot do it, then to serve me something swimming in butter. I also tip generously when my meal is as I requested.
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With regard to the USA Today article, they reported on the Center for Science in the Public Interest's report on extremes in eating. Here is the link to the actual report from CSPI – it really is enough to make you sick – really sick.

Menu Math - Choose Your Numbers

Today I would like to teach you a little bit about reading the nutrition info from a restaurant's website and making that information work for you. Remember, this blog is intended to empower YOU, the reader, to make decisions and choices based on the most current information and tools available - so that you have the best chance for an active, long life.

So we are going to use the chart featured here. I realize it may be hard to see. You can go straight to the source and view this, however, it will not have my highlights there.

So let me explain. This is the nutrition information that Panera Bread offers for its Mediterranean Salmon Salad. (we just talked about the Mediterranean Diet so this was a good example! It is also what I am having for lunch tomorrow)

Most health experts now recommend that we eat small, but frequent meals, as many as six a day - according to the Cleveland Clinic. I will let you see what they have to say as well, click here. Note their words - small, frequent meals mean JUST THAT. The USA Today Weight Loss challenge notes that most of the dieters are consuming 1500 to 1800 cals a day, so divide that number by six and if all the meals were even, all would be UNDER that 480 calorie Salmon Salad. There is no hard and fast rule about that however. Breakfast might be 200-400 calories with plenty of fiber and some meals may instead be 100 calorie snacks, but the best thing about the chart printed here is that you can use it to see which of the calories are BENEFICIAl and which bring along things you could do without - like extra sodium. Hence, my highlights.

Let me explain - as by the time I was done picking my choices, I had a 180 calorie salad!

Things to look for in a food label, good and bad, are fats (saturated, trans and unsaturated), protein, sodium, fiber, sugar and maybe cholesterol, but that is usually not as important as saturated and trans fats.

In this entree we can see that protein is good overall. Sodium is too high and for that reason I would leave out those poor olives, only 35 calories but almost 600 mg of sodium. Salmon does have some sodium naturally, but not this much - they must glaze the fillet. Saturated fat is only concerning for the cheese, but if you are watching saturated fat, that might be something to leave off. Notice that the almonds and salmon are high in poly or monounsaturated fats - (subtract the saturated fat from the total fat and that is how you know) . The remaining are the fats that give us the health promoting Omega 3s! There is too much sugar in this salad. A total of 19 grams. A food is considered a healthy choice if it has less than 8 g of added sugar. Now some of the sugar comes from oranges but a lot comes from the dressing. The dressing by the way is high in calories as well. I am going to use my own dressing.

I like that this chart has caffeine content included. There is none in this meal. I like that the meal does not have any TFAs! I am looking forward to my lunch tomorrow.

If you have the opportunity to look at a food this thoroughly you can certainly order your meal without items that don't meet your best health needs. Of course, a recent review of online and restaurant menus showed some significant under reporting in calorie content, so this is all to be taken as a "more or less" figure.

Bon Appetit!