Federal agencies love releasing potentially controversial proposals on Friday afternoons when reporters and everyone else is heading for the weekend. So that’s when the FDA released its week-late proposed rules for calorie labeling in restaurants.   There are two sets of proposed rules, one for restaurants, and one for vending machines.

Most of the proposed rules are pretty much as expected. They will apply to restaurants and fast-food places, bakeries, groceries, convenience stores, and coffee shops that are part of chains with more than 20 locations nationwide.  They also will apply to vending machines from companies with more than 20.

But here’s an eyebrow-raiser. The rules will not apply to movie theaters, airplanes, bowling alleys, and other establishments whose primary purpose is not to sell food. Uh oh. Food is sold everywhere these days as anyone who has been to a drug store lately can attest.

An exemption for movie theaters seems like a bizarre oversight. If ever there was a place where calorie labeling might be useful, try movie theater supersized sodas, popcorn, and candy.

In FDA-speak, an outlet is defined as primarily in the food business if it says it is, or if more than half its floor space is used to sell food. I can’t wait to see those drug stores getting out their tape measures.

Fortunately, these are proposed rules and you are more than welcome to comment on whether you think these exempted places should be required to opt in (I vote yes).  The FDA press release in the link above gives information about how to comment.  Note that there are two codes, one for restaurants and one for vending machines.

A couple of other points caught my eye:

Ranges: “Calories for variable menu items, such as combination meals, would be displayed in ranges. An example of a combination meal could be a choice of sandwich, side dish and beverage.”

Like how? Chipotle, for example, is happy to post calories in absurdly large ranges (200 to 800, for example). Do such places get to keep doing this?

Preemption of state and local laws: these rules will take precedent except that “State and local governments can establish nutrition labeling requirements for establishments not covered by the new law or regulations.”

Does this mean like movie theaters?

Alcohol: the rules do not apply to alcohol beverages because FDA does not regulate alcohol.  Treasury does (go figure).

Take every opportunity to comment!  The comment period opens April 6.

Here are some press accounts of the proposed rules:

Lyndsey Layton in the Washington Post (I’m quoted)

William Neuman in the New York Times deals with the preemption issue.

But local governments would be free to create laws for establishments that were left outside the federal rules.  New York City’s labeling law already requires movie theater chains to post calorie information. It also requires calorie labeling for alcoholic beverages listed on menus at restaurant chains.

The I assume ironically named Center for Consumer Freedom, ever on my case, posted a notice about my work on April 1, 2009. 

I found about about it only recently.  Someone who had read it on a Franchise Business Opportunities website wrote to ask if I would go into business with him. 

Enjoy!

Marion Nestle to Become Biggest New York McDonald’s Franchisee

Food and lifestyle critic Marion Nestle announced* this morning that she plans to invest in twelve Manhattan McDonald’s restaurants upon her retirement next month from New York University. The move will make the nutrition activist New York’s largest Golden Arches franchisee.

“It was a natural fit for me,” Nestle told The New York Times.* “After years of harping on the fast-food guys, I realized something shocking: People like affordable, tasty food. I’m certainly not going to get rich in my golden years by selling organic carrots and quinoa.” Former Times reporter Marion Burros returned from her own retirement to conduct the Marion-on-Marion interview.

A new special edition of Nestle’s book What to Eat is planned for the fall,* complete with a special cover designed by Hallmarks musical greeting-card department. Every time you open the book, Nestle’s own voice will be heard singing “Ba-da-bap-BAH-BAH! Im lovin it!”

Nestle added in a special Q&A for Mother Jones* that in her new role as a restaurateur, she would have to re-think practically everything she had written about food-industry marketing. “Momma’s got to make a living,” Nestle said. “I’ve promised the Socialist Scholars Conference that I’d co-sponsor next year’s event in Havana. So if I have to walk down Broadway dressed as Mayor McCheese to get butts in the seats, I’ll do it.”

*April Fool!

 I’ve been waiting to see what the FDA panel did before commenting on this week’s hearings on food dyes and hyperactivity in young children. 

According to reports from CNN and from the New York Times, the panel decided—to do nothing. 

Research, says the FDA panel, is insufficient to conclude that food dyes cause hyperactivity.  Despite much concern about this issue in Great Britain, the FDA will not put a warning label on foods that contain the dyes. 

This is déjà vu all over again.  When I first became interested in nutrition in the mid-1970s, food dyes were a big issue.   

Hyperactivity in kids was a new thing.  Ben Feingold, a physician in California, said that a diet devoid of food colors would help calm kids down. 

The Feingold Association still encourages that diet.

But scientfic tests of the Feingold hypothesis produced mixed effects.  In 1980, Science magazine published two reports of such tests. 

The first”by James M. Swanson and Marcel Kinsbourne (Science 1980;207:1485-87) gave pills containing a mix of food additives to 40 children, 20 diagnosed as hyperactive and 20 not.  The children diagnosed with hyperactivity reacted to the food additive challenge but the other children did not.

This study, however, was criticized for using pills, mixing additives, and evaluating the kids’ behavior by methods that were controversial.

A second study (Weiss, et al. Science 1980;207:1487-89) made a valiant effort to correct for those problems.  It created two drinks that looked and tasted the same, one with a blend of seven food colors and one without.    The study was carefully designed to be triple-blind.  The drinks were formulated to look the same and neither the kids, parents, or observers knew what the kids were drinking.  The drinks were tested at different times on 22 kids.

The result?  Twenty of the 22 kids showed no reaction to the dyes.  One showed occasional reactions. 

But one child reacted to the dyes every time.

The interpretation?  A small percentage of kids may react to food dyes.

That was pretty much the end of that except for petitions by Center for Science in the Public Interest to get rid of food dyes.

There things rested until 2007 when a study in England revived the issue.

Food dyes have only one purpose: to sell junk foods.  Candy, Cheetos, and sodas that are brightly colored are perceived as tasting better than the grey alternatives.  The food industry needs food dyes badly.

But nobody else does.  Parents of hyperactive kids can easily do their own experiment and see if removing food colors helps calm their kids down. 

Food dyes have no health benefits that I can think of.  Kids don’t need to be eating those foods anyway.  Kids will not be harmed by avoiding food dyes.

It would be nice to have more conclusive research.  In the meantime, read food labels!

In an effort to avoid having to raise prices and lose competitive advantage, the makers of processed foods are putting less food—and more air—in the packages.  The New York Times calls this “stealthy downsizing.”

In every economic downturn in the last few decades, companies have reduced the size of some products, disguising price increases and avoiding comparisons on same-size packages, before and after an increase. Each time, the marketing campaigns are coy; this time, the smaller versions are “greener” (packages good for the environment) or more “portable” (little carry bags for the takeout lifestyle) or “healthier” (fewer calories)….Most companies reduce products quietly, hoping consumers are not reading labels too closely.

I’d call it “healthy downsizing!”   A great way to cut calories!

Walmart is not satisfied with being the biggest food retailer in the world.  It wants more.  It has saturated national suburban areas, says the New York Times, and is now lobbying hard to get into New York City—that bastion of liberal thinking: 

Wal-Mart is pursuing that goal with the intensity, sophistication and checkbook of a full-fledged political campaign, hiring star political consultants, including Mayor Michael R. Bloomberg’s former campaign manager, producing expensive television and print advertisements and conducting polls.

And it is doing it with the kind of in-your-face aggressiveness that would make a New Yorker proud.

A glossy brochure it mailed to thousands of city residents appeals to their sense of autonomy, declaring: “You don’t ask the special interests or the political insiders for permission to watch TV. So why should they decide where you’re allowed to shop?”

A spokesperson for Walmart explained that after exhausting all other customer segments:

Now we only have one segment left…People who self-identify themselves as liberals.

In New York, an indisputably Democratic city, Wal-Mart faces a big challenge, both from lawmakers…and from unions, who accuse the retailer of endangering small businesses and mistreating its workers.

Wal-Mart has responded with an all-out push meant to overwhelm and outmaneuver its far less deep-pocketed opposition. It has put out a flurry of television, radio and newspaper advertisements, including one radio spot that accuses opponents of not caring “about how many jobs Wal-Mart would create or how badly people need them.”

 Advertising Age is also following the Walmart saga closely.  On March 6, it wrote about Walmart’s enormous influence over the retail industry.  This could be a force in favor of better industry self-regulation (if such a thing is possible):

Walmart, however, clearly has been out in front of the rest of the industry on many issues. And unlike a government, it isn’t bound by constitutional due process that bogs regulations sometimes for years. No Tea Party representatives are trying to withhold funds for its greenhouse-gas reduction plans. And with billions of dollars at business at stake for its biggest customers, Walmart wields a bigger stick than any fines a government can impose.

And on March 20, Advertising Age wrote about Walmart’s complicated problems with class issues related to its pricing strategies. 

The chain so far is having trouble winning back shopping trips and dollars it lost the past two years from middle- and lower-income core consumers, and it also appears to be turning off the group it made inroads with through its last strategic revamp, Project Impact. That initiative cleared promotional merchandise out of aisles and reduced assortments to make stores more visually appealing and easier to shop in for upscale shoppers. But as Walmart scaled back on Impact by adding products back to its shelves and aisles and returned to everyday low pricing, those shoppers have become less satisfied.

Walmart may be family owned, but the family is exceedingly wealthy and runs an absurdly large enterprise—$405 billion in 2010, of which $140 billion was in food.  Anything Walmart does has an out-of-proportion impact on customers, its 2 million “associates” workforce, and competing businesses, large and small.

Everything Walmart does deserves scrutiny, and its efforts to move into New York City are no exception.

I enjoy reading the San Francisco Chronicle when I’m in that city.  Today’s has a full-page ad from Coca-Cola: “Everything in moderation.  Except fun, try to have lots of that.”

Our nation is facing an obesity problem and we plan on being part of the solution.  By promoting balanced diets and active lifestules, we can make a positive difference.

For some people, a 12-fl.-oz. beverage may be too much.  Everyone’s needs are different.  So we’ve created a variety of package sizes….

While keeping track of calories is important, so is burning them off.  In our partnership with the Boys & Girls Clubs of America, we’ve heled more than one million kids learn the importance of physical activity and proper nutrition….

  As I keep saying, you can’t make this stuff up.

FoodNavigator.com periodically collects its posts about specific topics.  This one is called Nanotechnology – Challenges and Opportunities. Nanotechnology, this European industry site says, “offers the food processing and packaging industries significant gains in terms of performance, safety and functionality. But uncertainties remain over the long-term effects of exposure to nanomaterials.”

Indeed, they do.  As I have discussed previously, nanotechnology is the use of extremely small particles to do any number of things to food, food processing, and food packaging.   I’m still having a hard time knowing what to think about it.  So are others, apparently.

EFSA publishes draft guidance on nano risk assessment: The European Food Safety Authority (EFSA) has published draft guidance giving more specific risk assessment information regarding the use of nanotechnology in food…

Scientists developing ‘rechargeable’ antimicrobial layer for food processing surfaces: The germ-killing properties of a prototype nano-scale antimicrobial layer for food handling surfaces can be chemically ‘recharged’ every time it is rinsed with household bleach, said US scientists…

Assess risk from nano-pollution and antimicrobials in packaging – IFST: The Institute of Food Science and Technology (IFST) has called for greater appraisal of the potential risks from the release into the environment of nanomaterials used in food packaging…

Nano-coated ‘killer paper’ developed to extend food shelf life: Israeli scientists have said their new nano-coated “killer paper” could be used in food packaging to combat bacteria such as E.coli to extend product shelf life…

New ISO standard gauges nano-toxicity risks: New guidelines from the International Organisation for Standardization (ISO) have been published in a bid to help key industry players assess the possible risks presented by the burgeoning growth of nano-based products…

UK mulls confidentiality pact with industry over nano research: The Food Standard Agency (FSA) said it is considering signing confidentiality agreements with food and packaging companies in a bid to persuade them to share information on nanotechnology research…

I’m hoping for for more research, and soon.

So many readers have sent me the link to the Chicago Tribune story about efforts of packaged food producers to make their products look healthy that I thought I had best say something about it.

The article lists the large number of companies that are “healthifying” their products:

• PepsiCo: Combining Tropicana, Quaker Oats and dairy; low-sodium salt.
• Walmart: Cutting trans fat and sodium in its Great Value products; encouraging major brands to make healthier products.
• Kraft:  Adding fruit to Lunchables and more whole grain to Wheat Thins.
• Nestlé (no relation): Making small changes so consumers won’t feel deprived.
• Campbell’s:  Trying to reduce sodium in soup, promoting liquid vegetables through its V8 brand and whole grains with Pepperidge Farm.
• Starbucks: Offering sweets with 200 or fewer calories.

And Pepsi, says the Wall Street Journal, is converting most of its products—but not Doritos or Cheetos—to all-natural ingredients.  Doritos and Cheetos, in case you wondered, are:

harder to retool and are marketed to teens and other consumers who might be turned off if told the chips were all natural.  As well, going all natural risks highlighting the artificial ingredients that were in the chips before.

What’s going on here?  Processed food makers must be in trouble.  “Healthy” and “natural” are the only things selling these days.

But isn’t a “healthy” processed snack food an oxymoron?  They can tweak and tweak the contents, but these products will still be heavily processed.

Too much evidence now concludes that marketing a product as “healthy” or “natural” makes people think it has no calories.

And as I keep saying, just because a processed food is a little bit less bad than it used to be, doesn’t necessarily make it a good choice.