Oregon Waits for Menu Labeling to Take Effect

July 27, 2011—Oregon public health advocates celebrated a hard fought victory in 2009 when the Legislature passed one of the nation’s strongest menu labeling laws. But they, and the state, were stopped in their tracks by the federal government, which passed a menu labeling law in March 2010.

The public comment period closed July 5, allowing the Food and Drug Administration to finalize the rules, which are expected to take effect next summer.

The federal law requires chain restaurants with 20 or more locations to post how many calories each meal contains. The current debate is whether airline food, alcohol, deli food sold at supermarkets such as Safeway or Fred Meyer, and food sold at movie theaters will have to comply.

Because federal laws preempt state laws, Oregon’s Menu Labeling Act couldn’t go into effect. “It's kind of a drag,” said Nancy Becker, who chairs the Oregon Nutrition Policy Alliance and a registered dietician with the Oregon Public Health Institute.

Becker and others are not necessarily upset or dismayed that it’s taken so long for menu labeling to become a reality in Oregon. “You can look at this as a glass half empty or a glass half full [situation],” Becker said. “We put a lot of effort into making this happen, and we haven't seen it yet. [But] there will be better compliance, and it will be much more uniform [with the national law].”

Before the federal law passed, Oregon’s Public Health Division had spent four months drafting administrative rules determining how the state’s Menu Labeling Act would be implemented. Karen Girard, the Public Health Division's health promotion manager, said parties quickly finished the rule-making process before the law’s first phase—determining how, and in what format, restaurants would provide requested nutritional information—became effective on January 1, 2010.

“They were intense meetings to just hammer through the details,” Girard said. “We were pretty stretched.”

The Public Health Division stopped short of beginning rule making for the law's second phase—requiring restaurants to post the caloric, salt, and saturated fat content of meals on menus--when passage of the nation-wide labeling law began looking likely.

“We knew that federal legislation was a possibility,” Girard said. “We decided to hold off Oregon’s rule writing until we knew what that federal legislation looked like. We’re still waiting to see how that bears out.”

Oregon’s law would have required all chain restaurants with 15 or more locations to post the caloric, saturated fat and salt content of its meals, and provide other nutritional information upon request. 

Public health advocates lauded passage of Oregon’s law. According to the Center for Science in the Public Interest (CSPI), a person spends half their food budget, on average, eating out. But the majority of people underestimate a meal’s calories. Consequently, Becker said, “people don’t even know what a healthy choice is.”

Eating more calories or food with higher fat leads to obesity, which is considered a major risk factor for chronic health conditions such as type II diabetes, heart disease and arthritis.

Currently, said Girard, no programs or resources are in place for obesity prevention. Even though advocates realize menu labeling won’t curb obesity, they believe it will help people make healthier decisions about what they eat.

“People will decrease their caloric intake,” according to Margo Wootan, CSPI’s nutrition director, who said the passage of Oregon’s law helped build momentum and awareness at the national level.

28 states, as well as many of the country’s major cities, had passed menu labeling laws. That led the restaurant industry to support a nation-wide menu labeling law.

“They industry had gone from completely and totally opposing menu labeling to actually lobbying for the bill,” Wootan said. “They had hands-on experience with menu labeling in [other states], and they saw that the sky didn’t fall down, and that it wasn’t nearly as costly.”

“Federally, it would not have happened unless various states and municipalities had passed their own individual laws,” Becker said.

In some ways, the Oregon’s Menu Labeling Act is stronger because it would have required chain restaurants with 15 or more locations to post caloric counts, rather than the federal requirement of 20 locations.

There may be sections of the Menu Labeling Act that won’t be preempted by federal law since chain restaurants with 15 to 19 locations must comply with Oregon law. “There may not be very many restaurants or chains that fall in that 15 to 19 category,” Girard said.

But it may not be necessary for Oregon to revisit the law or the rule-making process. Chain restaurants in Oregon falling into that category could simply decide to meet federal criteria. “There are a lot of things to work out in that gray area,” Girard said.