Thursday, December 11, 2008

Industry Successes In Menu Board/Calorie Posting Wars, Ohio And Georgia Lost to Industry Tactics, A Call To Action

Industry Successes in Menu Board/Calorie Posting Wars

Ohio Prempts Local Action

In 2005, Ohio proposed HB423. The bill would have required restaurants that are part of a chain having 10 or more locations nationally and 5 or more locations in Ohio, to list calories, saturated fat, trans fat, carbohydrates, and sodium on the menu or menu board for standard menu items as usually prepared and offered for sale. The proposed law was progressive and in-line with other jurisdictions trying to tackle obesity and related diseases. The bill never passed.

In a complete turnaround of principles, Ohio recently passed HB 217 (now Chapter 43). That law gives exclusive authority to Ohio’s Director of Agriculture to regulate the provision of food nutrition information in food service establishments. Under the law, "Food nutrition information" includes the caloric, fat, carbohydrate, cholesterol, fiber, sugar, potassium, protein, vitamin, mineral and sodium content of food.

The Ohio law quite clearly prevents any political subdivision in Ohio from enacting or adopting local legislation relating to the provision of food nutrition information at food service operations. The law takes away local options in Cleveland, Columbus and Toledo (and everywhere else in Ohio) from even considering calorie posting laws in their jurisdictions. It preempts all local initiatives, and quashes the disclosure movement as it existed in Ohio before its passage.

Georgia Takes Away Local Options

Georgia passed HB 1303 and enacted, Act No. 504 in 2008. It prohibits any county board of health or political subdivision of the state including municipalities, county and local government authorities, boards, and commissions from regulating the display of food nutrition information at food service establishments. So Atlanta will not be joining Philadelphia, New York City and other progressive communities in their efforts to post calorie counts in fast food and chain restaurants. Georgia preempted any government entity in the state from even considering the passage of menu board laws within the state of Georgia.

Regressive politics at its worst.

These two states took affirmative action to preempt any local jurisdiction in their states from passing menu board laws. When industry took New York City to court to challenge its menu board law, it argued that federal law preempted states and local entities from passing such laws, and that menu board laws were under the exclusive jurisdiction of the federal government. Well, industry lost that argument. In fact, the federal government specifically excluded calorie postings on menu boards from its federal legislation and intentionally left the states to pass such laws.

Having lost the federal preemption argument, and left with the likelihood that many municipalities in the country would pass calorie posting laws, industry changed its strategy.

It engaged its favorite legislators to sponsor laws in the House and Senate called the LEAN Act. The primary purposes of the LEAN Act are to create a federal preemption of calorie posting and menu board laws (and to preclude state and local governments from being able to pass such laws), and to enable restaurants to post calories in places other than on menus and menu boards (where customers are likely to see them). The LEAN Act permit postings in menu supplements or on signs other than where prices are posted.

Industry’s other strategy was to get to state legislatures and have their favorite state assemblymen and senators introduce laws that preempt local jurisdictions in their states from passing calorie posting and menu board laws. Georgia and Ohio are two of industry’s successes.

Voters in Georgia and Ohio should recognize that they’ve been had and ask for a statewide mandate requiring calorie posting and menu board laws similar to those in California and New York City. Alternatively, they should ask for repeal of their state’s preemption law. Repeal would enable local counties and cities to consider their own protective legislation, and allow local initiatives to combat obesity.

As another alternative, voters in Georgia and Ohio (and everywhere else) should support the federal MEAL Act. It largely mirrors New York City’s successful menu board law and would apply it nationally. Although both the LEAN Act and the MEAL Act will likely die in Congress this year, both are certain to be reintroduced in the new 111th Congress next year.