RECENT REGULATION
HEALTH REGULATION — PATIENT PROTECTION AND AFFORDABLE CARE ACT — FOOD AND DRUG ADMINISTRATION FINALIZES REGULATIONS REQUIRING RESTAURANTS AND SIMILAR
RETAIL FOOD ESTABLISHMENTS TO LABEL CALORIES ON
MENUS. — Food Labeling; Nutrition Labeling of Standard Menu
Items in Restaurants and Similar Retail Food Establishments, 79 Fed.
Reg. 71,156 (Dec. 1, 2014) (to be codified at 21 C.F.R. pts. 11, 101).
Federal food-labeling laws enacted in the early 1990s exempted restaurants from nutrition-labeling requirements, but required the Food
and Drug Administration (FDA) to define the term “restaurants or
other establishments” in implementing the exemption.1 In the Patient
Protection and Affordable Care Act2 (ACA), Congress expanded
nutrition-labeling requirements to certain “restaurant[s] or similar retail food establishment[s] . . . with 20 or more locations,”3 again without defining “similar retail food establishment” or “locations.” Recently, the FDA finalized a menu-labeling rule that settles on a broad
definition of “similar retail food establishment” to cover any establishment that sells “restaurant-type food.”4 Although the final rule’s broad
definition of “similar retail food establishment,” which also expressly
exempts schools,5 is legally permissible, the FDA acted on legally uncertain ground in exempting airplanes, trains, and food trucks through
a surprising definition of “location.”6
On March 23, 2010, the ACA was signed into law, bringing federal
nutrition-labeling requirements to restaurants for the first time.7 Sec-
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
1 See Nutrition Labeling and Education Act of 1990, 21 U.S.C. § 343(q)(5)(A)(i) (2006)
(amended 2010).
2 Pub. L. No. 111-148, 124 Stat. 119 (2010) (codified as amended in scattered sections of 26
and 42 U.S.C.).
3 21 U.S.C. § 343(q)(5)(H)(i) (2012).
4 Food Labeling; Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments, 79 Fed. Reg. 71,156, 71,163 (Dec. 1, 2014) [hereinafter Menu Labeling
Final Rule] (to be codified at 21 C.F.R. pts. 11, 101). The rule defines restaurant-type food to include things like sit-down and drive-through meals, take-out and delivery pizza, buffets, salad
bars, and foods intended for individual consumption (like sandwiches at a deli counter). See id.
at 71,170. Food that “consumers usually store for use at a later time or customarily further prepare,” such as a loaf of bread or deli meat, is not restaurant-type food. Id.
5 See id. at 71,169.
6 See id. at 71,171.
7 See CTR. FOR FOOD SAFETY & APPLIED NUTRITION, FOOD & DRUG ADMIN., FDA2010-D-0370, DRAFT GUIDANCE FOR INDUSTRY: QUESTIONS AND ANSWERS REGARDING
IMPLEMENTATION OF THE MENU LABELING PROVISIONS OF SECTION 4205 OF THE PATIENT PROTECTION AND AFFORDABLE CARE ACT OF 2010, at 4 (2010).
2098
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tion 4205 of the ACA8 requires certain “restaurants and similar retail
food establishments . . . with 20 or more locations” to provide specified
nutrition information for “standard menu item[s].”9 The ACA requires
covered establishments to disclose the calorie content “in a clear and
conspicuous manner” directly on the menu along with “a succinct
statement concerning suggested daily caloric intake.”10 The law also
requires that covered establishments make additional nutrition information — such as sodium content — available in written form, and
the menu must include a notice that this additional nutrition information is available upon request.11 The ACA set a deadline of March
23, 2011, for the FDA to issue implementing regulations.12
On July 7, 2010, the FDA solicited comments on how to implement
the menu-labeling requirements.13 Although still receiving comments,
the FDA published draft guidance to the industry in August 2010.14 In
the draft guidance, the FDA interpreted the relevant portions of section 4205 to have gone into effect immediately upon enactment, but
elected not to initiate any enforcement action until after a final rule
had been promulgated.15 The draft guidance broadly interpreted “similar retail food establishments” to include entertainment venues like
movie theaters, cafes and food courts in grocery stores, and “transportation carriers (e.g., airlines and trains).”16 It did not mention schools
or define “locations.”
The FDA withdrew the draft guidance on January 25, 2011,17 and
issued its proposed menu-labeling rule for comments on April 6,
2011.18 The proposed rule identified the statutory term “similar retail
food establishments” as ambiguous and proposed to define an establishment as similar to a restaurant (and therefore covered by the rule)
“if it offers for sale restaurant or restaurant-type food and its primary
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
8 The nutrition-labeling provision was initially enacted as section 4205, Pub L. No. 111-148,
§ 4205, 124 Stat. 119, 573 (2010), and was codified at 21 U.S.C. § 343(q)(5).
9 21 U.S.C. § 343(q)(5)(H)(i).
10 Id. § 343(q)(5)(H)(ii).
11 See id.
12 See id. § 343(q)(5)(H)(x).
13 See Disclosure of Nutrient Content Information for Standard Menu Items Offered for Sale
at Chain Restaurants or Similar Retail Food Establishments and for Articles of Food Sold from
Vending Machines, 75 Fed. Reg. 39,026 (July 7, 2010).
14 CTR. FOR FOOD SAFETY & APPLIED NUTRITION, supra note 7, at 1.
15 Id. at 13.
16 Id. at 6.
17 Draft Guidance for Industry: Questions and Answers Regarding Implementation of the
Menu Labeling Provisions of Section 4205 of the Patient Protection and Affordable Care Act of
2010; Withdrawal of Draft Guidance, 76 Fed. Reg. 4360 (Jan. 25, 2011).
18 Food Labeling; Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments, 76 Fed. Reg. 19,192 (proposed Apr. 6, 2011) [hereinafter Menu Labeling
Proposed Rule] (to be codified at 21 C.F.R. pts. 11, 101).
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business activity is the sale of food to consumers.”19 The proposed rule
considered the sale of food to be an establishment’s “primary business
activity” if the establishment either presented itself to the public as a
restaurant or used greater than fifty percent of its gross floor area for
the “preparation, purchase, service, consumption, or storage of food.”20
Under the primary-business test, grocery stores that sold restauranttype food would “generally” be covered by the rule, but movie theaters,
trains, planes, schools, and hospitals would “generally” be exempted.21
On December 1, 2014, the FDA issued a final menu-labeling rule.22
Abandoning the primary-business test, the final rule applies to any establishment (including movie theaters) with 20 or more locations that
“sell[s] restaurant-type food.”23 The rule exempts schools from the definition of “similar retail food establishment.”24 Where the statute applies to establishments with “20 or more locations,”25 the final rule defines “location” as “a fixed position or site,” thus exempting trains,
airplanes, and food trucks from the menu-labeling requirements.26 Establishments must comply with the new rules by December 1, 2015.27
While the menu-labeling rule’s expansive reach has drawn popular
criticism,28 the agency’s broad definition of “similar retail food establishment” is a permissible interpretation of the ACA, even though it in–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
19
20
Id. at 19,196.
Id. at 19,197. The FDA also sought comments on an alternative to the floor-area test that
considered whether more than fifty percent of the establishment’s revenues are generated by food
sales. Id.
21 See id. at 19,197 n.1, 19,198–99. Under certain proposed alternative primary-business tests
(which relied on floor area used for the sale of restaurant-type food or percent of revenue generated by the sale of restaurant-type food), grocery stores would have generally not been covered. Id.
at 19,198–99.
22 Menu Labeling Final Rule, supra note 4, at 71,156.
23 Id. at 71,164–66.
24 Id. at 71,169.
25 21 U.S.C. § 343(q)(5)(H)(i) (2012).
26 Menu Labeling Final Rule, supra note 4, at 71,171 (internal quotation marks omitted). The
rule requires that covered establishments declare the calorie content of standard menu items on
menus, menu boards, and signs adjacent to self-service food (like buffets), see id. at 71,158,
71,176–82, 71,191–205, 71,218–29, that additional written nutrition information be made available
upon request, see id. at 71,158, 71,212–18, and that menus and menu boards include a “succinct
statement” explaining the suggested daily calorie intake for adults, id. at 71,158, 71,205–11, and
notifying customers that the additional nutritional information is available, see id. at 71,158,
71,211–12. The rule specifies how establishments will determine, see id. at 71,158, 71,229–33, and
substantiate, see id. at 71,158, 71,233–37, their food’s nutrition content and establishes terms and
conditions under which establishments not covered by the rule could voluntarily opt in to its requirements, see id. at 71,158, 71,237–38.
27 Id. at 71,240.
28 See, e.g., Sabrina Tavernise & Stephanie Strom, F.D.A. to Require Calorie Count, Even for
Popcorn at the Movies, N.Y. TIMES (Nov. 24, 2014), http://www.nytimes.com/2014/11/25/us/fda
-to-announce-sweeping-calorie-rules-for-restaurants.html.
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cludes movie theaters and excludes schools. However, excluding airplanes, trains, and food trucks — under a definition of “location” that
was introduced for the first time in the final rule — may be legally unsound as an impermissible interpretation and as a violation of noticeand-comment rulemaking procedures.
The FDA’s interpretations of the statutory terms “similar retail food
establishment” and “location” are governed by the two-step analysis
laid out in Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc.29 First, a reviewing court determines whether a statutory term is
ambiguous, and therefore open to agency interpretation, by looking to
“whether Congress has directly spoken to the precise question at issue.”30 “Similar retail food establishment” is ambiguous under Chevron step one. Congress did not define the term in the statute. In a
comment, the National Association of Theatre Owners argued that the
language of the ACA indicates that Congress “clearly” intended to
reach only “chain retail food establishments,” which “no one would associate with movie theaters and other establishments where the sale of
food is incidental to or quite separate from the establishment’s primary
purpose.”31 However, Congress’s choice to include the phrase “or other similar retail food establishment” indicates an intention to reach
more broadly than just “restaurants,” delegating to the FDA the task
of defining criteria by which an establishment can be judged to be
“similar” to a restaurant. The ACA’s language is in fact more vague
than the legislation in California and New York City on which it was
modeled. Those jurisdictions were more explicit about defining establishments that are covered (New York City) or exempted (California)
under their calorie-labeling requirements.32
If a court determines that “the statute is silent or ambiguous with
respect to the specific issue,” it proceeds to Chevron step two and asks
“whether the agency’s answer is based on a permissible construction of
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
29
30
31
467 U.S. 837 (1984).
Id. at 842.
National Association of Theatre Owners, Comment on Menu Labeling Proposed Rule, at 2
(July 5, 2011). The only relevant legislative history the organization cites is language in a 2012
House Committee on Appropriations Report opposing a rule that “would include establishments
that are not primarily in the business of selling food for immediate consumption.” Id. at 2 n.6
(quoting H.R. REP. NO. 112-101, at 53 (2012)). A committee report from a Congress that has
changed leadership since the passage of the ACA shines little light on the intent of the Congress
that passed the ACA. Even if the Committee’s report were authoritative, the report does not assert that “similar retail food establishments” clearly precludes including entertainment venues; it
advocates that the “FDA should define the term ‘restaurant’ to mean only restaurants . . . where
the primary business is the selling of food for immediate consumption.” Id. (emphasis added)
(quoting H.R. REP. NO. 112-101, at 53) (internal quotation mark omitted).
32 See Act of Sept. 30, 2008, ch. 600, § 2(a)(1)(A)–(I), 2008 Cal. Stat. 4288, 4289, repealed by Act
of Oct. 2, 2011, ch. 415, § 2, 2011 Cal. Stat. 4185, 4186; N.Y.C., N.Y., HEALTH CODE §§ 81.01,
81.50 (2015).
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the statute.”33 Here, the FDA has developed criteria to define “similar
retail food establishment” that are permissible under Chevron step two.
The FDA’s construction has precedent: the Nutrition Labeling and
Education Act of 199034 (NLEA), in defining what establishments
were exempt from nutrition-labeling requirements, had included
among restaurants “other establishments in which food is served for
immediate human consumption or which is sold for sale or use in such
establishments.”35 The ACA explicitly amended the NLEA to remove
this exemption. The menu-labeling rule defines “similar retail food establishments” to include establishments, like movie theaters, that are
like restaurants in that they offer prepared food that is “ready for human consumption”36 and eaten on the premises or very soon after leaving.37 The menu-labeling rule thus covers establishments for the same
reasons that they were included in the NLEA’s exemption.
Additionally, the FDA’s decision to exclude schools is permissible.
The FDA responded to a comment advocating including “a school
food service contractor that uses a central kitchen or cooks the same
food for 20 schools” as a covered establishment under the rule.38 Although the FDA’s previous regulations implementing the 1990 NLEA
included schools in the category of restaurants and other similar establishments that were then exempt from labeling requirements, the FDA
can also choose to treat schools separately from restaurants now that
restaurants must label their menus.39 In interpreting the ambiguous
ACA term “similar retail food establishments” to exclude schools, the
FDA found that “the traditional and long-standing role” of the Department of Agriculture (USDA) in regulating school meals was a sufficiently reasonable basis on which to decide to exclude food vendors
in schools.40 The determination is the same even though the ACA requires the FDA to promulgate regulations to define covered establishments.41 While in Massachusetts v. EPA42 the Court precluded an
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
33
34
35
Chevron, 467 U.S. at 843.
Pub. L. No. 101-535, 104 Stat. 2353 (codified as amended in scattered sections of 21 U.S.C.).
See Menu Labeling Final Rule, supra note 4, at 71,165 (quoting 21 U.S.C. § 343(q)(5)(A)(i)
(2006) (amended 2010)) (internal quotation mark omitted). In regulations, the FDA defined “other
establishments” to include “e.g., institutional food service establishments, such as schools, hospitals, and cafeterias; transportation carriers, such as trains and airplanes; . . . [and] food service
vendors, such as lunch wagons.” 21 C.F.R. § 101.9(j)(2)(ii) (2014).
36 Menu Labeling Final Rule, supra note 4, at 71,165 (quoting 21 U.S.C. 343(q)(5)(A)(i) (2012)).
37 See id.
38 Id. at 71,169; see also Robert Wood Johnson Foundation Center to Prevent Childhood Obesity, Comment on Menu Labeling Proposed Rule, at 2 (July 5, 2011) (advocating including schools
in menu-labeling requirements).
39 Menu Labeling Final Rule, supra note 4, at 71,169.
40 Id.
41 See 21 U.S.C. § 343(q)(5)(H)(x)(I).
42 549 U.S. 497 (2007).
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agency from relying on statutorily irrelevant factors — like the
USDA’s authority over school meals — in refusing to exercise rulemaking authority under an unambiguous statute,43 the ambiguity of
“similar retail food establishments” gives the FDA the authority to
look to factors outside of the statute and decide to exclude schools
from the menu-labeling rule.44
The FDA’s decision to exclude airplanes, trains, and food trucks,
however, is legally questionable. The final rule suggested for the first
time that the statute’s application to establishments with “20 or more
locations” is ambiguous and defines “location” as “a fixed position or
site,”45 thereby exempting airplanes, trains, and food trucks. The FDA
introduced its definition of “location” in response to a comment asking
for clarification about whether multiple locations of the same establishment in the same mall would count toward the “20 or more locations” that make a chain subject to the rule.46 The definition is also in
response to a comment seeking clarification that “mobile facilities
(such as food trucks),” which were not mentioned in the proposed rule,
would be covered if they had twenty or more locations.47 With no legislative history relevant to the question of how to understand “location” in these examples, the FDA concluded that “location” required
further definition, suggesting that it is an ambiguous statutory term
under Chevron step one. The FDA consulted dictionaries to conclude
that “the common meaning of the word ‘location’ involves a specific or
fixed position on land or portion of land.”48 Thus, the rule counts two
storefronts in the same mall as two locations, but does not cover “food
facilities that do not have a fixed position or site,” including trains,
airplanes, and food trucks.49
Even if uncertainty about how to count multiple storefronts within
the same mall supports the FDA’s Chevron step one conclusion that
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
43
44
Id. at 529, 533–34.
Cf. WildEarth Guardians v. U.S. EPA, 751 F.3d 649 (D.C. Cir. 2014). In that case, the D.C.
Circuit upheld the EPA’s decision not to include coal mines under its interpretation of the Clean
Air Act, which requires the EPA to regulate a “stationary source[] . . . [that] causes, or contributes
significantly to, air pollution which may reasonably be anticipated to endanger public health or
welfare.” 42 U.S.C. § 7411(b)(1)(A) (2012). The EPA did not determine whether coal mines contribute to air pollution that endangers public health but denied the petition for rulemaking because it “must prioritize its actions in light of limited resources and ongoing budget uncertainties.”
WildEarth Guardians, 751 F.3d at 651 (quoting Notice of Final Action on Petition from
Earthjustice to List Coal Mines as a Source Category and to Regulate Air Emissions from Coal
Mines, 78 Fed. Reg. 26,739 (May 8, 2013) (to be codified at 40 C.F.R. pt. 63)) (internal quotation
mark omitted).
45 Menu Labeling Final Rule, supra note 4, at 71,171.
46 Id.
47 Id.
48 Id. (emphasis added).
49 Id.
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“location” is ambiguous, the FDA’s construction to exclude mobile sites
is likely impermissible under Chevron step two. When a court evaluates the reasonableness of an agency’s interpretation under Chevron
step two, it examines the interpretation’s “‘fit’ with the statutory language as well as its conformity to statutory purposes.”50 While “location” may be ambiguous at the margins where two stores are operating
on opposite ends of a mall, the FDA’s construction of “location” as tied
to a tract of land is inconsistent with the statutory purpose of section
4205 of the ACA, which is to define a unit by which to count the number of franchises in a chain. Although airplanes, trains, and food
trucks move their locations, they have unique, countable locations at
any given moment in time.51 The result of the FDA’s construction is
that a chain that operates nineteen storefronts and one food truck, or
serves food on hundreds of airplanes, would not be covered by the
rule, but a chain that operates twenty storefronts in the same mall
would be. This construction focuses on a statutorily irrelevant factor — whether a location can move — to undermine the statute’s purpose, which is to provide consumers with nutrition information when
they order restaurant-type food.
Not only is the FDA’s definition of “location” vulnerable under
Chevron, but it is also procedurally vulnerable. The Administrative
Procedure Act (APA), which governs notice-and-comment rulemaking,52 requires that the final rule an agency adopts be the “logical outgrowth” of the rule proposed.53 The logical outgrowth requirement is
an interpretation of the APA requirement that agencies provide in a
notice of proposed rulemaking “either the terms or substance of the
proposed rule or a description of the subjects and issues involved.”54
This requirement serves the principle of providing “fair notice.”55
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
50 Abbott Labs. v. Young, 920 F.2d 984, 988 (D.C. Cir. 1990); see also Goldstein v. SEC, 451
F.3d 873, 881–84 (D.C. Cir. 2006) (finding SEC’s designation of investors in a hedge fund as “clients” of that fund inconsistent with the relevant statute’s text and purpose).
51 Although an agency often wins a case at Chevron step two, see Jason J. Czarnezki, An Empirical Investigation of Judicial Decisionmaking, Statutory Interpretation, and the Chevron Doctrine in Environmental Law, 79 U. COLO. L. REV. 767, 775 (2008), some scholars have argued
that the two steps of Chevron are in fact two ways of articulating the same inquiry, see, e.g., Matthew C. Stephenson & Adrian Vermeule, Essay, Chevron Has Only One Step, 95 VA. L. REV. 597
(2009). Thus, it is possible to articulate the legal issue with the FDA’s construction of “location”
as a Chevron step one problem: the statutory context in which “location” appears — as a unit by
which to count the number of franchises in a chain — unambiguously prohibits the FDA from
defining “location” as necessarily connected to a “tract of land”; the mobility or immobility of a
location is irrelevant to the purpose of the statute in which “location” appears.
52 5 U.S.C. § 553(b)–(c) (2012).
53 Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 174 (2007) (quoting Nat’l Black Media Coal. v. FCC, 791 F.2d 1016, 1022 (2d Cir. 1986)) (internal quotation marks omitted).
54 5 U.S.C. § 553(b)(3).
55 Long Island Care, 551 U.S. at 174; see also AFL-CIO v. Donovan, 757 F.2d 330, 338–40
(D.C. Cir. 1985) (invalidating for failure to provide adequate notice a final rule that introduced for
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Public comments are likely insufficient to provide fair notice,56 especially here, where the two comments about “location” raised questions
for clarification and did not propose definitions of “location.”57 The
FDA’s decision to define “location” for the first time in a final rule fails
the logical outgrowth test. Neither the draft guidance nor the proposed rule mentioned food trucks specifically, and the public could not
have been on notice that the agency would treat food trucks separately
from restaurants (under the primary-business test, food trucks would
presumably be covered). Similarly, while the public was on general
notice that whether airplanes and trains would be included within the
definition of “similar retail food establishment” was at least up for debate, the public had no fair notice of, and thus no meaningful opportunity to comment on, the wisdom of using the definition of “location”
to exclude those businesses. By contrast, the public had fair notice
that the agency was considering whether “similar retail food establishments” should include movie theaters and exclude schools because
both of those establishments were discussed in the proposed definition
of “similar retail food establishment.”58 The public was therefore on
notice that movie theaters could be included or excluded from the definition of “similar retail food establishment,” and their inclusion is a
“logical outgrowth” of the proposed rule.
A large buttered popcorn can pack up to 1,200 calories,59 which is
60% of the total daily suggested calorie intake for an adult.60 The
FDA acted legally in bringing this information to consumers at the
concession stand — and in choosing to leave school meals to the
USDA. But for vendors in airplanes, trains, and food trucks, the FDA
should open up its definition of “location” to public comment to vet the
legality and wisdom of failing to disclose nutrition information to their
customers.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
the first time a “substantial performance” test for whether a contract was performed in the United
States); Chocolate Mfrs. Ass’n of U.S. v. Block, 755 F.2d 1098, 1105–07 (4th Cir. 1985) (invalidating for failing to provide adequate notice a final rule banning flavored milk from the Women, Infants, and Children (WIC) program even though the proposed rule indicated that the agency was
looking to limit the “sugar, fat, and salt” content of permitted foods, id. at 1106).
56 Chocolate Mfrs., 755 F.2d at 1103 (finding a lack of fair notice notwithstanding the fact that
the agency explained its rule through reference to seventy-eight comments (out of over 1,000) that
called for banning flavored milk from the WIC program).
57 See Menu Labeling Final Rule, supra note 4, at 71,171.
58 Menu Labeling Proposed Rule, supra note 18, at 19,197–98, 19,197 n.1.
59 Jayne Hurley & Bonnie Liebman, BIG: Movie Theaters Fill Buckets . . . and Bellies, CENTER FOR SCI. PUB. INT. (Dec. 2009), http://www.cspinet.org/nah/articles/moviepopcorn
.html [http://perma.cc/GKR7-2JQ2].
60 The menu-labeling rule requires restaurants to post the following succinct statement: “2,000
calories a day is used for general nutrition advice, but calorie needs vary.” Menu Labeling Final
Rule, supra note 4, at 71,256.
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PUBLIC HEALTH POLICY BRIEFS
Supplementing National Menu Labeling
The US Food and Drug
Administration’s forthcoming national menu labeling
regulations are designed to
help curb the national obesity epidemic by requiring calorie counts on restaurants’
menus. However, posted calories can be easily ignored
or misunderstood by consumers and fail to accurately describe the healthiness
of foods. We propose supplemental models that include nutritional information
(e.g., fat, salt, sugar) or specific guidance (e.g., “hearthealthy” graphics). The goal
is to empower restaurant
patrons with better data
to make healthier choices,
and ultimately to reduce
obesity prevalence. (Am
J Public Health. 2012;102:
e11–e13. doi:10.2105/AJPH.
2012.301028)
James G. Hodge Jr, JD, LLM, and Lexi C. White, BA
FORTHCOMING NATIONAL
menu labeling regulations from
the US Food and Drug Administration (FDA)1 will equip Americans with new information to help
guide their menu choices when
they eat out. Based on requirements already in place in New
York City (2008); Seattle---King
County, Washington (2009); California (2009); Massachusetts
(2009); and other jurisdictions,
the FDA’s regulations will require
chain restaurants nationwide to
post caloric information on menus
and menu boards. Although some
restaurants already voluntarily
provide such information via
printed or electronic media, many
of these resources are confusing,
inaccessible, and largely ineffective.2 Lacking data at the point of
sale in most cases, Americans
largely order “in the dark” without
actual knowledge of the calorie
content or other nutritional facts
about their restaurant meals.
The overriding public health
goal of menu labeling is to help
people make healthier choices,
consume fewer calories, lower
their weights, and improve their
health outcomes. Combined with
increased physical activity and
other measures, reductions in
daily caloric intake are a central
strategy in addressing the obesity
epidemic nationally. Posting calories on restaurant offerings, much
like those provided on packaged
foods since 1968,3,4 may lead
restaurant patrons to choose
lower-calorie foods. Some data
suggest that current menu labeling
positively alters consumer habits
and vendor practices. A New York
City study in 2007, for example,
found that Subway restaurant
December 2012, Vol 102, No. 12 | American Journal of Public Health
patrons who saw posted calorie
information purchased on average
52 fewer calories per order than
those who did not.5 Calorie postings on menus may also increase
transparency and heighten restaurants’ accountability for the foods
they serve.6 Not surprisingly, menu
labeling has strong support from
federal, state, and local public
health advocates. Even the National Restaurant Association and
many larger restaurants endorse
forthcoming federal requirements,
although largely because of the
regulations’ preemptive effect on
divergent state and local menulabeling practices.7
In principle, national menu labeling should work. In reality,
however, it may not. Americans’
appetite for fast food coupled with
sophisticated industry practices to
design and market inexpensive,
oversized portions loaded with
unhealthy fats, salt, and sugars
may undermine its positive effects.
Lacking necessary data to make
informed decisions against a constant marketing barrage of oversized, cheap, and easy restaurant
meals, many individuals may still
consume far more calories than
they intend when they eat out.
Some research suggests that menu
labeling may have only limited
effects on consumers’ behaviors,
especially among adolescent or
lower-income consumers who
comprise a large part of the fast
food market and tend to order on
the basis of taste and price, not
calories.8 Consumers may simply
look past or ignore calorie information or fail to understand the
nutritional meaning of calorie
data. Within a social and economic
environment that increasingly
promotes the consumption of
unhealthy foods, providing restaurant patrons with enhanced information to make nutritional
decisions is paramount.
NATIONALIZING
MENU-LABELING
PRACTICES
The FDA’s national menulabeling requirements seek to (1)
raise consumer awareness of the
calorie content of restaurant offerings, (2) reduce the calorie content of existing menu items, and (3)
increase the number of lowercalorie options. Applying to more
than 275 000 restaurant or other
retail food establishments with
more than 20 locations, the regulations will require the posting
of calorie data on menus, menu
boards, and drive-thrus via text that
is in similar font, size, and color as
used to describe menu items and
their price. Variable menu items
offering different choices or size
options, such as combination meals,
must include an accurate calorie
range (e.g., 350 to 510 calories).1
Though extensive, the FDA’s
proposed regulations are limited
in their scope. They do not presently apply to 75% of the nation’s
restaurants (because they are not
chains). Nor do they apply to hotels,
movie theaters, convenience stores,
or other entities whose primary
business is not food service (even
though they serve similar foods as
chain restaurants). Only standard
menu items prepared by restaurants on site, as well as self-serve
salad bars and beverage dispensers,
are covered. Calories will not be
posted for condiments, alcoholic
beverages, prepackaged foods (such
Hodge and White | Peer Reviewed | Public Health Policy Briefs | e11
PUBLIC HEALTH POLICY BRIEFS
a
b
Biggie Burger
$3.99
550 Cal.
Cal.
27%
Biggie Burger $3.99
550 Cal.
c
Sodium
61%
Fat
44%
Biggie Burger
$3.99
Sugar
8%
d
550 Cal.
Fat
29 g
Sodium
996 mg
Sugar
9g
Biggie Burger $3.99
550 Cal.
Note. FDA = US Food and Drug Administration.
FIGURE 1—Supplemental models for menu labeling as follows (a) FDA menu labeling requirements, (b)
model 1, (c) model 2, (d) model 3.
as salad dressing), or temporary or
“test” items that appear on the
menu for 90 days or fewer per year
(e.g., specialty sandwiches, drinks,
or appetizers). Because of purported space limits on menus and
boards and other factors, the FDA’s
regulations also do not include
more extensive nutritional data. All
that the FDA requires in this regard
are brief statements about the US
Department of Agriculture’s daily
calorie standard and how consumers may request additional,
available nutritional data.1
SUPPLEMENTAL
INFORMATION TO GUIDE
HEALTHY CHOICES
In addition to coverage-based
limitations of the FDA’s menu
labeling provisions are several
practical shortcomings. Especially
in fast-food environments where
consumers tend to order rapidly,
mere posting of calories is an insufficient guide for patrons to assess the nutritional qualities of
menu items.8 For example, persons ordering single menu items
may not be able to review or add
calories accurately before they
order. Concerning combination
meals, the FDA allows reporting of
wide ranges of calories depending
on consumer options (e.g., fruit vs
fries). More importantly, calorie
data provide only a fraction of
relevant nutritional data consumers need. As such, they are an
incomplete proxy for restaurant
patrons to use in distinguishing
healthy from unhealthy foods.9
Ideally, health-conscious consumers may consider not only the
e12 | Public Health Policy Briefs | Peer Reviewed | Hodge and White
calories of menu items, but also
their saturated or trans fat, sodium, and sugar contents, among
other factors. More comprehensive nutritional information available on food wrappers, placemats,
in-store posters, or online are easily ignored or available only after
placing an order (e.g., data printed
on fast food packaging). Limited
space on menus and consumers’
capacity to apprehend data do not
allow for exhaustive recitation of
nutritional guidance on menus like
what appears on packaged foods.
Nor do consumers always need
voluminous nutritional data to
make healthy choices. What they
do need, however, is something
more than calorie data. Subject to
additional research to identify and
validate the most effective options
to better inform consumers, we
suggest that the FDA consider 3
alternatives to supplement basic
calorie posting on menus as illustrated in Figure 1. Each of these
alternatives is designed to fit
within reasonable allotments of
space on restaurant menus and
boards.
Model 1 provides core nutritional data for each menu item
based on a percentage of recommended daily values of calories,
fat, salt, and sugar in a pie chart
format that many consumers can
assess more easily than mere calorie information to order healthier
options. Still, some patrons may
find it difficult to scan or understand these statistical data when
glancing quickly at a menu or
menu board (note that the same
can be said for numerical calorie
counts). To help improve rapid
comprehension of nutritional data,
model 2 uses well-recognized
“stoplight” imagery to denote a hierarchy of healthiness for each
food item. The premise is simple:
the more green lights a consumer
sees, the healthier the food item
may be. Colored indicators coupled with raw data may cater to
more consumers, some of whom
may be more receptive to statistical information, and others to
more illustrative figures. Similar
models supported by the National
Health Service have shown promise in the United Kingdom where
some manufacturers voluntarily
provide comparable images of
nutritional data on packaged
foods.10
Model 3 offers an alternative
approach. By using “heart healthy”
figures featured on some existing
packaged foods, menu items may
be distinguished as “healthy” or
“unhealthy” through markettested graphics that are wellknown and understood. Backed
by additional FDA guidance on
how to draw clear distinctions
American Journal of Public Health | December 2012, Vol 102, No. 12
PUBLIC HEALTH POLICY BRIEFS
between healthy and unhealthy
foods, this model obviates a restaurant patron’s calculation of nutritional facts and assists them in
choosing menu items on the basis
of the items’ essential health qualities.
Posting calorie counts on menus
is one thing; requiring subjective
classifications of menu items is
another. We recognize that these
models may evoke individual and
political concerns about government attempts to moralize consumers’ food choices. Restaurants
and their associations may object
on issues of cost, practicality, and
design. None of these objections,
however, has prevented packaged
food manufacturers from providing considerably more nutritional
data on their packages. Restaurants may also raise First Amendment commercial speech and
other legal challenges, especially if
posting information consistent
with these models causes consumers to change their buying
habits. Commercial speech objections may stem from claims that
government is mandating unwarranted speech without justification. Our models do not require
overly burdensome, subjective
speech that courts tend to prohibit
under strict analyses. Instead, they
reflect fact-based guidelines based
on national nutrition standards
that have already survived similar
First Amendment arguments by
the food and beverage industries.
Like calorie posting, the purpose of our supplemental models
is neither to vilify restaurants nor
to force consumers to make
healthier choices. We do not seek
to restrict what restaurants can
serve or limit what consumers can
order. Rather, equipping consumers with more complete, nationally consistent nutritional data
at the point of sale can help them
make better informed choices
about restaurant foods. Ultimately,
enhanced menu labeling beyond
mere calorie postings may positively change consumer and vendor habits and potentially help
quell the rising obesity epidemic. j
About the Authors
James G. Hodge Jr and Lexi C. White are
with the Sandra Day O’Connor College of
Law, Arizona State University, Tempe.
Correspondence should be sent to James G.
Hodge Jr, JD, LLM, Lincoln Professor of
Health Law and Ethics, Sandra Day
O’Connor College of Law, Arizona State
University, PO Box 877906, Tempe, AZ
85287-7906 (e-mail: james.hodge.1@asu.
edu). Reprints can be ordered at http://www.
ajph.org by clicking the “Reprints” link.
This article was accepted August 6,
2012.
Contributors
Each author provided original research,
drafting, and editing for all phases of the
production of the article, including its
initial design and conception stages.
6. Menu Labeling, Does Providing Nutrition Information at the Point of Purchase
Affect Consumer Behavior? A Research
Synthesis. Princeton, NJ: Robert Wood
Johnson Foundation; 2009.
7. NRA files comments with FDA on
menu-labeling regulations. National Restaurant Association; 2011. Available at:
http://www.restaurant.org/nra_news_blog/
2011/07/nra-asks-fda-to-make-menulabeling-rules-more-workable for-restaurants.
cfm. Accessed June 21, 2011.
8. Parker-Pope T. After menu labels,
parents and kids order same foods. New
York Times. February 16, 2011. Available at: http://well.blogs.nytimes.com/
2011/02/16/after-menu-labels-parentsand-kids-order-same-foods. Accessed
May 25, 2012.
9. Wu HW, Sturm R. What’s on the
menu? A review of the energy and nutritional content of US chain restaurant
menus. Public Health Nutr. 2012(11):
1---10.
10. National Health Services. Food labels. Available at: http://www.nhs.uk/
livewell/goodfood/pages/food-labelling.
aspx. Accessed May 25, 2012.
Acknowledgments
The authors would like to thank Chase
Millea, Andrew Sorensen, and Daniel G.
Orenstein at the Sandra Day O’Connor
College of Law, Arizona State University,
for their review and input concerning
previous drafts of the article.
Human Participant Protection
No human participants were involved in
the production of this research or article
and, thus, no institutional review board
approval was sought.
References
1. Food Labeling; Nutrition Labeling of
Standard Menu Items in Restaurants and
Similar Retail Food Establishments, 76
Federal Register 19,192 (April 6, 2011)
(to be codified at 21 CFR, pt 11, 101).
2. Elbel B, Kersh R, Brescoll VL, Dixon
LB. Calorie labeling and food choices:
a first look at the effects on low-income
people in New York City. Health Aff
(Millwood). 2009;28(6):w1110---w1121.
3. Fair Packaging and Labeling Act, 15
USC §1451---1461 (1966).
4. Nutrition Labeling and Education
Act of 1990, 21 USC §343 (1990).
5. Bassett MT, Dumanovsky T, Huang
C, et al. Purchasing behavior and calorie
information at fast-food chains in New
York City 2007. Am J Public Health.
2008;98(8):1457---1459.
December 2012, Vol 102, No. 12 | American Journal of Public Health
Hodge and White | Peer Reviewed | Public Health Policy Briefs | e13
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download, or email articles for individual use.
AJPH RESEARCH
Predicted Impact of the Food and Drug
Administration’s Menu-Labeling Regulations on
Restaurants in 4 New Jersey Cities
Jessie Gruner, PhD, RDN, Robin S. DeWeese, PhD, RDN, Cori Lorts, PhD, MPH, RDN, Michael J. Yedidia, PhD, and Punam Ohri-Vachaspati,
PhD, RD
Objectives. To determine the proportion of restaurants that will be required to post
calorie information under the Food and Drug Administration’s menu-labeling regulations
in 4 New Jersey cities.
Methods. We classified geocoded 2014 data on 1753 restaurant outlets in accordance
with the Food and Drug Administration’s guidelines, which will require restaurants with
20 or more locations nationwide to post calorie information. We used multivariate logistic regression analyses to assess the association between menu-labeling requirements
and census tract characteristics.
Results. Only 17.6% of restaurants will be affected by menu labeling; restaurants in
higher-income tracts have higher odds than do restaurants in lower-income tracts (odds
ratio [OR] = 1.55; P = .02). Restaurants in non-Hispanic Black (OR = 1.62; P = .02) and mixed
race/ethnicity (OR = 1.44; P = .05) tracts have higher odds than do restaurants in nonHispanic White tracts of being affected.
Conclusions. Additional strategies are needed to help consumers make healthy
choices at restaurants not affected by the menu-labeling law. These findings have implications for designing implementation strategies for the law and
for evaluating its impact. (Am J Public Health. 2018;108:234–240. doi:10.2105/
AJPH.2017.304162)
See also Kraak, p. 158.
T
he proportion of calories consumed from
food sources outside the home, including
restaurants, has increased significantly since
the 1970s and now constitutes roughly a third of
daily calories consumed by both children and
adults.1 Food purchased outside the home is
typically larger in portion sizes, higher in fat and
calories, and lower in fiber than is food prepared
at home.1–4 Additionally, restaurant meals
tend to be energy dense and nutrient poor and
often exceed the typical calorie recommendations for single eating occasions.5–7
Although fast-food restaurants have been
shown to contribute the most calories to food
consumed away from home8 and typically
serve food of poor dietary quality,7 some evidence suggests that meals from small chain and
independent restaurants are more energy dense
than are those from large, national chain restaurants.6 Furthermore, meal consumption
234
Research
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Gruner et al.
away from home varies by sociodemographic
characteristics. Higher-income individuals
derive a greater proportion of calories from all
sources away from home, but the contribution
of calories from fast-food restaurants among
lower-income individuals recently surpassed
that for higher-income individuals.8,9 NonHispanic Black adults consume significantly
more calories when dining out than do nonHispanic Whites and Hispanics.10
Overconsumption of calories is a primary
risk factor for weight gain and obesity11; thus,
it is not surprising that consumption of food
away from home is associated with higher
body weight.12 According to National Health
and Nutrition Examination Survey data, 36%
of adults and 17% of youths aged 2 to 19 years
were obese (having a body mass index [defined as weight in kilograms divided by height
in meters squared] ‡ 30.0) in 2011 through
2014.13 Because of the magnitude of the
problem, finding strategies to prevent obesity
is a public health priority.
Restaurants have been identified as possible
venues to target obesity prevention efforts,
because both adults and children frequently
consume meals in restaurants.14,15 The US
surgeon general’s 2001 call to action to prevent
obesity first proposed calorie menu labeling in
restaurants as a strategy to prevent and decrease
the burden of overweight and obesity.16 Soon
after, the Food and Drug Administration
(FDA) and the Institute of Medicine encouraged the restaurant industry to enact
voluntary menu labeling.17 State and local
governments also began trying to pass
menu-labeling laws in 2003; however, these
efforts encountered resistance from the restaurant industry. In 2006 New York City was
the first local jurisdiction to pass menu labeling,
and in 2008 California was the first state to
successfully implement a statewide law.18 By
2010, 20 states and localities had passed varied
menu-labeling policies,19 leading to different
stakeholders coming together to negotiate
uniform standards across all 50 states that would
preempt more restrictive state or city policies.
Menu labeling was finally passed into law
nationwide as part of the Patient Protection
ABOUT THE AUTHORS
Jessie Gruner, Robin S. DeWeese, Cori Lorts, and Punam Ohri-Vachaspati are with the School of Nutrition and Health Promotion,
Arizona State University, Phoenix. Michael J. Yedidia is with the Rutgers Center for State Health Policy, New Brunswick, NJ.
Correspondence should be sent to Punam Ohri-Vachaspati, School of Nutrition and Health Promotion, Arizona State University, 500 N 3rd
Street, Phoenix, AZ 85001 (e-mail: pohrivac@asu.edu). Reprints can be ordered at http://www.ajph.org by clicking the “Reprints” link.
This article was accepted September 26, 2017.
doi: 10.2105/AJPH.2017.304162
AJPH
February 2018, Vol 108, No. 2
AJPH RESEARCH
and Affordable Care Act in 2010.20 The
primary goal of menu labeling is to help
consumers make informed dietary choices,1 as
studies show the average consumer and even
nutrition professionals have trouble estimating the caloric content of meals eaten away
from home.21,22 The FDA, tasked with
creating guidelines for implementing menu
labeling, released the final rules in December
2014, which require restaurants and similar
food establishments with 20 or more locations
nationwide to post calorie information on
menus and menu boards.23 The FDA’s final
guidance requires eligible restaurants to post
calorie information by May 7, 2018.24
Research shows that in restaurant settings,
although the majority of customers notice
menu labeling, only 15% to 33% of patrons use
the information when determining food or
beverage choices.25–30 Therefore, studies examining the overall impact of menu labeling
find no significant reduction in calorie purchases or consumption.28,31–34 However,
studies looking at those who actively use
calorie information show that users purchase
fewer calories than do nonusers.26,29,30,35,36
Furthermore, there are disparities in who uses
menu labeling. Adults with higher-income
levels,26,30,37,38 adults aged 25 to 44 years,25
and adults who consume fast food more frequently37 are more likely to use menu labeling.
The format for displaying menu labeling
can also influence its effectiveness; for example, use of colors to identify healthier
options has been shown to enhance comprehension and reduce caloric intake.39
As part of the upcoming FDA regulations,
restaurants will also be required to add
contextual language to help consumers
understand menu labeling with respect to
daily calorie recommendations (e.g., “2,000
calories a day is used for general nutrition
advice, but calorie needs vary” for adults and
“1,200 to 1,400 calories a day is used for
general advice for children ages 4 to 8 years,
but calorie needs vary” for children).23 Such
statements have been shown to be beneficial
in informing customers’ purchases.40
Systematic reviews examining the impact
of menu labeling have reported mixed results.31,39,40 A 2015 meta-analysis concluded
that menu labeling has the potential to reduce
the number of calories purchased and consumed.39 Other reviews conclude that menu
labeling may work only in specific contexts40
February 2018, Vol 108, No. 2
AJPH
or may result in very small declines in calories
purchased.31 Irrespective of differences in
conclusions, all reviews support menu labeling
as a relatively low-cost strategy that may encourage consumers to purchase fewer calories.
The FDA projections for the cost benefit
attributed to menu labeling in terms of improved health and longevity, primarily related
to predicted reductions in obesity prevalence,
range from $3.7 billion to $10.4 billion.1
These depend on the extent to which patrons
shift their consumption behaviors toward
healthier diets consistent with the Dietary
Guidelines for Americans. The FDA and the
National Restaurant Association, a long-time
supporter of a uniform standard for displaying
calorie information at chain restaurants,
predict that menu labeling will affect 36% to
40% of US restaurants (approximately
298 600 establishments in 2130 chains).1,41
Because less than half of all restaurants are
projected to be affected, we asked whether all
communities would be equally exposed to
menu labeling. We sought to determine the
proportion of restaurants that will be affected
by the new menu-labeling regulations in 4
urban, high-minority, low-income cities in
New Jersey. Although other factors may
contribute to consumer response to labeling,
exposure is a precondition to its use. We also
investigated whether such exposure to menu
labeling will vary by the income and race/
ethnicity of census tracts within these cities.
Considering that fast-food restaurants cluster
in lower-income and racial/ethnic minority
neighborhoods,42–45 we hypothesized that
restaurants in lower-income census tracts and
restaurants in census tracts with higher proportions of racial/ethnic minorities will be
more likely to be affected by menu labeling.
METHODS
We obtained 2014 geocoded data on
restaurant outlets in 4 New Jersey cities
(Camden, New Brunswick, Newark, and
Trenton) from InfoUSA and classified them
using a standard protocol developed for
a National Institutes of Health–funded
study.46 The final analysis included 1753
restaurant locations. Consistent with the literature, we defined chain restaurants as establishments with multiple locations doing
business under the same name, regardless of
ownership type (e.g., individual franchise), that
offer approximately the same menu items.47
Chain restaurants can be full or limited service.
Limited-service restaurants, often referred to as
fast-food restaurants or quick service restaurants,
are establishments where patrons order and pay
before eating. In full-service restaurants, patrons
order and are served while seated and pay after
eating.48 Because the menu-labeling law will be
applied to all types of outlets with 20 or more
locations nationwide, including full- and
limited-service restaurants, we did not separate
out the different restaurant types. We distinguished between restaurants that will (i.e., any
restaurant with 20 or more locations nationwide) and those that will not (i.e., restaurants
with fewer than 20 locations nationwide) be
affected by menu-labeling regulations.
Outcome Variable
We first classified restaurants located in the
4 cities using a list of the top 100 chain restaurants from a published Technomic, Inc.
report49; all restaurants on this list had 20 or
more locations nationwide. For restaurants
that were not on the Technomic list, we used
store locater features available on restaurant
web pages to determine whether the restaurant had 20 or more locations. In accordance with the FDA’s guidelines,23 we
identified restaurants that are part of a chain
with 20 or more locations doing business
under the same name as establishments likely
to be affected by menu-labeling regulations,
which we coded as 1 (vs 0 for others).
Explanatory Variables
We obtained census tract characteristics
using data from the 2011 through 2015
American Community Survey.50 We included only tracts with restaurants in the
analysis (n = 267). Of the 312 census tracts
across the 4 New Jersey cities, 45 did not have
a restaurant located in the tract; we excluded
these from our analysis. Explanatory variables
included median household income and racial/ethnic characteristics of census tracts
where restaurants were located. We used
these variables in categorical formats to allow
our examination of differences between the
groups that are furthest apart (e.g., lowest
vs highest income), as is often done in similar studies examining neighborhood context.9,44,45,51,52 We categorized the median
Gruner et al.
Peer Reviewed
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235
AJPH RESEARCH
household income for each tract on the basis
of tertiles to create lower-, middle- and
higher-income categories. We used the
proportions of non-Hispanic Whites, nonHispanic Blacks, and Hispanics to calculate
a majority race variable, coding tracts with
predominately non-Hispanic Whites (> 50%
of the population) as 1, tracts with predominately non-Hispanic Blacks as 2, tracts
with predominately Hispanics as 3, and tracts
with no predominate race/ethnicity category as 4.
Analysis
We used multivariate logistic regression
analyses to assess the association between
being subject to menu-labeling requirements
and census tract characteristics. We ran
multivariate and descriptive analyses using
SPSS version 23 (IBM-SPSS Statistics, Inc.,
Somers, NY). We set the a-level of significance at .05 for all analyses.
RESULTS
A summary of the restaurants in the 4 New
Jersey cities that meet the criteria for being
subject to menu labeling is presented in Table
1. Of the 1753 restaurants located in the study
area, 308 (17.6%) belonged to chains with 20
or more locations and will therefore be required to post calorie information. Of the
restaurants to be affected by menu labeling,
245 locations belonged to chains with a top
100 ranking on the basis of sales,49 and 63
locations were part of local or unranked
chains with at least 20 locations. Chains most
frequently represented in the study sample
that will be required to post menu labels
included Dunkin Donuts, Subway,
McDonald’s, Burger King, Domino’s Pizza,
Wendy’s, Kentucky Fried Chicken, and
Popeyes Louisiana Kitchen. Conversely,
1445 restaurants (approximately 82% of all
restaurants in New Jersey), which were
independent or chains with fewer than 20
locations nationwide, will not be affected by
the FDA’s menu-labeling regulations.
Table 2 shows the characteristics, including race/ethnicity, population density,
and land mass, of census tracts in which restaurants were located. Median household
income across all tracts was $47 426. We
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Gruner et al.
TABLE 1—Number of Restaurants in Cities Projected to Be Affected by Menu-Labeling
Regulations: 4 New Jersey Cities, 2014
Restaurant Chain
McDonald’s
Starbucks
No. Locationsa (n = 1753)
Rank on Technomic Top 100b (n = 245)
17
1
4
2
Subway
36
3
Burger King
15
4
Wendy’s
11
5
Taco Bell
6
6
Dunkin’ Donuts
63
7
Pizza Hut
6
9
Applebee’s
3
10
Panera Bread
1
11
KFC
10
12
Domino’s Pizza
11
13
Chipotle Mexican Grill
2
15
Chili’s Bar and Grill
1
17
Little Caesars
6
19
Dairy Queen
3
20
Arby’s
1
22
IHOP
3
23
Papa John’s
9
24
10
27
1
32
Popeyes Louisiana Kitchen
Texas Roadhouse
Jimmy John’s
1
36
TGI Fridays
1
37
Five Guys Burgers & Fries
2
43
Church’s Chicken
1
50
Hooters
1
51
Boston Market
3
68
Baskin-Robbins
2
73
White Castle
5
74
Jamba Juice
1
78
Famous Dave’s
1
82
Quiznos
1
84
Checkers/Rally’s
4
86
On the Border Mexican Grill and Cantina
1
94
Cold Stone Creamery
Other chain restaurants (identified through
2
98
63
Not ranked
store locater web searches)
Note. IHOP = International House of Pancakes; KFC = Kentucky Fried Chicken. Of the total number of
restaurant locations, 1445 (82.4%) will not be affected by the menu labeling and 308 (17.6%) will be
affected.
a
Included restaurant locations in Camden, New Brunswick, Newark, and Trenton.
b
2015 Technomic Inc., Top 100 Chain Restaurant Report. All restaurants included in the list had > 20
locations nationwide and so are eligible for menu labeling.
AJPH
February 2018, Vol 108, No. 2
AJPH RESEARCH
TABLE 2—Characteristics of Census Tracts Where Restaurants Were Located: 4 New Jersey
Cities, 2014
Characteristic
Total
Mean land area, km2 (SD)
Population Density,
People/km2, Mean 6SD
Land Area,
km2, Mean 6SD
0.73 60.51
1.51 (3.06)
2
Mean population density, people/km (SD)
5 788 (3 829)
Mean median household Income, $ (SD)
47 426 (20 563)
Lower tertile, $
< 36 997
6 186 63 001
Middle tertile, $
36 997–52 557
7 249 64 215
1.03 61.71
Higher tertile, $
> 52 557
3 977 63 414
2.60 64.55
Majority non-Hispanic White, %
18.0
4 047 64 078
2.38 63.03
Majority non-Hispanic Black, %
36.8
6 128 62 843
0.85 61.66
Majority Hispanic, %
20.8
8 227 64 232
0.92 61.91
No majority, %
24.4
4 498 63 449
2.35 64.74
Race/ethnicity proportionsa
Note. Number of census tracts was n = 267. The cities were Camden, New Brunswick, Newark, and
Trenton.
a
Majority categories defined as census tracts with > 50% of residents of the specified race/ethnicity.
categorized approximately 37% of census
tracts as majority non-Hispanic Black, 24.4%
as mixed race/ethnicity tracts, approximately
21% as majority Hispanic, and 18% as nonHispanic White. Mean population density
and mean land area across all tracts and across
income and racial/ethnic categories are also
presented.
Table 3 shows, for all census tracts having at
least 1 restaurant, the number of restaurants and
the proportion required to post menu labels,
by income and race/ethnicity of the tracts.
Middle-income tracts had the largest number
of restaurants, followed by high-income tracts.
Higher-income tracts had the greatest proportion of restaurants (20.7%) projected to
TABLE 3—Total Restaurants and Proportion of Restaurants Required to Post Menu Labels by
Census Tract, and Adjusted Associations Between Menu-Labeling Status and Census Tract
Characteristics: 4 New Jersey Cities, 2014
Characteristic
No. Restaurants
No. Required to Post Menu Labels (%)
1753
308 (17.6)
Total
ORa (95% CI)
b
Income categories, tertile, $
Lower, < 36 997
506
78 (15.4)
Middle, 36 997–52 557
689
114 (16.5)
1.25 (0.90, 1.73)
Higher, > 52 557
552
114 (20.7)
1.55 (1.08, 2.23)
1 (Ref)
Race/ethnicityc
Majority non-Hispanic White
339
56 (16.5)
Majority non-Hispanic Black
487
100 (20.5)
1.62 (1.08, 2.43)
1 (Ref)
Majority Hispanic
405
44 (10.9)
0.74 (0.47, 1.17)
No majority
521
108 (20.7)
1.44 (1.01, 2.07)
Note. CI = confidence interval; OR = odds ratio. Cities were Camden, New Brunswick, Newark, and
Trenton.
a
From multivariate logistic regression analysis used to assess associations between menu-labeling
status and census tract characteristics, adjusting for income and race/ethnicity.
b
Income information missing for 6 census tracts; regression models adjusted for race/ethnicity.
c
Race/ethnicity information missing for 1 census tract; majority categories defined as tracts with > 50%
of residents of the specified race/ethnicity; regression models adjusted for income.
February 2018, Vol 108, No. 2
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be affected by menu labeling, followed by
middle-income tracts (16.5%). Lower-income
tracts had the smallest proportion of restaurants
that met the criteria for menu labeling at
15.4%. Tracts with no racial/ethnic majority
had the most restaurants, followed by majority
non-Hispanic Black tracts, majority Hispanic
tracts, and majority non-Hispanic White tracts.
Tracts with no racial/ethnic majority had the
largest proportion of restaurants projected to
be affected by menu labeling, at 20.7%; followed by majority non-Hispanic Black
neighborhoods, at 20.5%; and majority nonHispanic White neighborhoods, at 16.5%.
Majority Hispanic tracts had the smallest
proportion of restaurants likely to be subject
to menu labeling, at 10.9%.
Results from logistic regression assessing
the independent association between the
potential for being affected by menu labeling
and restaurant census tract characteristics are
also presented in Table 3. Restaurants located
in the highest-income tracts have 55% higher
odds of being affected by menu labeling than
do restaurants in lowest-income tracts (odds
ratio [OR] = 1.55; confidence interval
[CI] = 1.08, 2.23; P = .02). Restaurants located in majority non-Hispanic Black tracts
have 62% greater odds of being affected
by menu labeling than do restaurants
located in majority non-Hispanic White
tracts (OR = 1.62; CI = 1.08, 2.43; P = .02).
Restaurants located in census tracts with no
majority racial/ethnic group have 44% greater
odds of being affected by menu labeling than
do restaurants in majority non-Hispanic
White tracts (OR = 1.44; CI = 1.01, 2.07;
P = .048). We also ran regression models with
continuous variables (data not shown), and
we observed similar results for racial/ethnic
characteristics; restaurants in neighborhoods
with higher proportions of non-Hispanic
Black residents were more likely to be eligible
for menu labeling. However, when we used
income as a continuous variable, the incremental association was not significant.
DISCUSSION
Less than a fifth (17.6%) of restaurants in 4
New Jersey cities (Camden, New Brunswick,
Newark, and Trenton) will be required to
comply with the mandated US menulabeling law, set to take effect on May 7, 2018.
Gruner et al.
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The proportion of restaurants subject to
menu-labeling regulations in this sample is less
than half of what the FDA and the National
Restaurant Association project nationally
(36%–40%).1,41
We found the most restaurants overall in
middle-income tracts and tracts with no racial/
ethnic majority. Low-income tracts and majority non-Hispanic White tracts had the
fewest restaurants. Previous research on restaurant density and neighborhood characteristics produced mixed results. Although most
studies found that both full- and limitedservice restaurants are more likely to be located
in low- and middle-income neighborhoods,43–45,53 as well as in predominately Black
or mixed race/ethnicity neighborhoods,42–44
this is not always the case. Wang et al.,52 using
a sample from 4 cities in California, found that
residents of middle socioeconomic status tracts
lived closer to fast-food restaurants than did
residents of low and high socioeconomic status.
In a nationally representative sample, Powell
et al.,45 found that minority communities were
less likely to have fast-food or sit-down restaurants than were White neighborhoods.
Finally, Mazidi and Speakman found that
full-service restaurants and fast-food restaurants
were more likely to be located in wealthier,
more educated neighborhoods.54
We found that anticipated exposure to
menu labeling varies by neighborhood income and race/ethnicity. Restaurants located
in the highest-income tracts (median income
above $52 557) are more likely to be affected
by menu labeling than are those located in the
lowest-income tracts (median income below
$36 997), and restaurants located in majority
non-Hispanic Black or majority mixed
race/ethnicity tracts are also more likely to be
affected by the menu-labeling mandate.
These findings are consistent with the research of Austin et al.,51 who found that
fast-food chain restaurants in Chicago, Illinois, were more likely to be located in
high-income areas and that few restaurants
were located in low-income neighborhoods
(neighborhoods with median household incomes below $30 300).
Currently, only chain restaurants (those
with 20 or more locations nationwide) are
required to post calorie information and
provide additional nutrition information to
customers on request. Austin et al. argue that
chain restaurants may be hesitant to locate in
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Research
Peer Reviewed
Gruner et al.
impoverished areas.51 Similar results have
been observed with grocery stores, with
low-income neighborhoods having fewer
supermarkets than do high-income areas.55
Market demand and land availability may
explain location decisions for both restaurants
and grocery stores.55 Notably, a relatively
high proportion of restaurants in nonHispanic Black neighborhoods, the population among whom obesity prevalence is
the highest,9 will be subject to menu labeling.
A similar prevalence was not observed in
majority Hispanic tracts, however.
These findings raise multiple concerns
with regard to the impending implementation of the national menu-labeling law. First,
less than a fifth of all restaurants in lowincome communities are projected to be
required to display calorie menu labels.
Furthermore, the odds of having restaurants
with calorie menu labeling are lower in the
lowest-income neighborhoods and in
Hispanic neighborhoods—communities with
higher rates of obesity. The consequences in
terms of health equity of this differential exposure to menu labeling for obesity prevention
may be further exacerbated by the fact that
adults with lower-income levels are less likely
to notice and use menu labeling.26,30,37,38
Therefore, additional interventions are needed
in low-income areas to help consumers make
healthier choices when dining out to prevent
further health disparities among at-risk
populations.
Strengths and Limitations
To our knowledge, we are the first to assess
the extent to which restaurants located in
low-income and high-minority communities
will be affected by menu-labeling regulations.
We are also the first to investigate differences
in menu-labeling exposure on the basis of
variations in neighborhood demographics,
including income and race/ethnicity. A distinguishing strength of our study is that we
categorized restaurants using a standardized
process, with commercially available sources
and web searches.
A study limitation was the inclusion of
only 4 low-income urban cities in the sample.
Additionally, we confined food outlets to
restaurants; other eating establishments, including movie theaters, corner stores, grocery
stores, and vending machines, will also be
subject to the menu-labeling mandate. The
FDA estimates that an additional 20% of other
food establishments will be affected by the
final menu-labeling rule, including 18% of
grocery stores, 30% of convenience stores,
and 54% of movie theaters.1 Exposure to
menu labeling will be increased in communities with these venues.
Public Health Implications
Previous research indicates that individuals
who use menu labeling purchase fewer calories than do those who do not. Because only
15% to 33% of patrons report using menu
labeling in restaurants that display the information, educational and promotional
campaigns have the potential to increase
menu label use among those exposed to it.
However, because less than a fifth of the
restaurants we studied are projected to be
required to comply with menu-labeling requirements, low exposure—particularly in
low-income communities and in Hispanic
and non-Hispanic White communities—may
limit the impact of the policy on population
health and health inequities.
Additional strategies are needed to help
consumers make healthier choices when
eating in restaurants that will not be affected
by menu labeling under the current law. One
strategy would be to increase menu-labeling
exposure at restaurants not currently covered
by the law. Expanding menu labeling may
require technical assistance and financial incentives if smaller chains and independent
restaurants, which have been shown to serve
energy-dense meals,6 are to offer nutrition
information to consumers. The FDA estimates the cost of nutrition analysis to be
between $32 800 and $120 500 per chain.1
Although this cost is likely to be affordable for
larger chains, economic incentive may be
critical for others. Consumer demand may
also promote expansion of menu labeling;
results from previous studies suggest that the
majority of customers want to see calorie
information posted in restaurants.56,57
Effective communication strategies are
needed to raise consumer awareness, understanding, and use of menu labeling. Other
strategies for helping consumers make
healthier choices when eating out include
reformulating restaurant meals to lowercalorie options, adding healthier sides and
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February 2018, Vol 108, No. 2
AJPH RESEARCH
entrée options, modifying and standardizing
portion sizes, and promoting options that
meet specific nutritional guidelines.39,58–60
Such efforts should target low-income
communities, which already carry a disproportionate burden of poor diet quality and
health outcomes, to address diet-related
health inequities.
CONTRIBUTORS
J. Gruner collected data, conducted the analysis, and
wrote the first draft of the article. R. S. DeWeese created
the database. R. S. DeWeese, C. Lorts, and M. J. Yedidia
revised the article. C. Lorts collected the data.
M. J. Yedidia interpreted the findings. M. J. Yedidia
and P. Ohri-Vachaspati procured grant funding.
P. Ohri-Vachaspati conceptualized the study, analyzed
the data, and developed the article.
HUMAN PARTICIPANT PROTECTION
The Arizona State University and Rutgers University
institutional review boards approved this study.
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AJPH EDITORIALS
Comprehensive Restaurant-Sector
Changes Are Essential to Reduce
Obesity Risk for All Americans
See also Gruner et al., p. 234.
Advocates celebrated a victory when the 111th US Congress enacted the Affordable
Care Act, Public Law 111-148
(HR 3590), which was signed
into law on March 23, 2010.1
Section 4205 mandated that
food vendors and quick-service
restaurant, fast-casual restaurant,
and full-service restaurant chains
with more than 20 US locations
would be required to disclose
calories on menus and menu
boards and make other nutrition
information available to customers upon request (bit.ly/
2y8d403). The law directed the
Food and Drug Administration
to provide guidance and oversight for industries affected by
the law.1
Public health advocates could
not have predicted that it would
take 15 years to champion this
legislation—seven years to
translate local advocacy efforts
into a national law and eight years
to finalize the regulatory guidance requiring chain restaurants
to post calorie information
starting May 7, 2018.
In this issue of AJPH, using
geocoded data for 1753 restaurant outlets in four New Jersey
cities in 2014, Gruner et al.
(p. 234) report on the predicted
impact of the Food and Drug
Administration’s menu-labeling
regulation. The results showed
that 84% of independent nonchain restaurants in the four
large cities would not need to
comply with the restaurant
menu-labeling law unless they
158
Editorial
Kraak
voluntarily choose to do so.
These results have important
implications for other locations
that operate profitable restaurant
franchises and small restaurant
businesses across the country.
Gruner et al. also found that
people with a median income at
or higher than $52 560 are more
likely to see and benefit from
restaurant menu labeling than
Americans living in low-income
communities with a median
income less than $37 000 and
majority Hispanic track neighborhoods. They acknowledged
health equity concerns for lowincome adults disproportionately impacted by higher obesity
rates and diet-related noncommunicable diseases who are
less likely to use menu labeling.
Mandatory restaurant menu
labeling is necessary but insufficient to raise consumers’
awareness and influence restaurant policies and practices to
reformulate and market healthy
offerings to reduce obesity and
noncommunicable disease risks
among Americans. This editorial
describes opportunities and challenges for the US restaurant sector
to make transformative changes
that promote healthy choices as
the norm and not the exception.
trade association representing
more than 500 000 food-service
businesses, projected US eating
establishment sales to exceed
$551 billion in 2017, representing 48% of household income
spent on food.2
One in three Americans got
their first job experience in a restaurant, and half of all adults have
worked in the restaurant industry
at some point during their lives.2
A majority of adults report that
dining out with friends and family
is preferable to cooking at home
and cleaning up.2
A 2017 market research survey
found that Americans who frequent quick-service restaurant
chains prioritize staff friendliness,
value for money spent, food
quality, service speed, cleanliness,
and atmosphere over the healthfulness of food offerings.3 Given
these trends, one can understand
why nearly two thirds of American
adults visit quick-service restaurant
chains and 40% visit fast-casual
restaurant chains weekly, and 30%
to 40% of children and adolescents
visit quick-service restaurant
chains daily.4
RECOMMENDED
NUTRIENT TARGETS
Between 2006 and 2016, 16
government, industry, and expert
public health bodies recommended nutrient targets for the
US restaurant sector, including
standardizing portions and reducing the total energy to 700 or
fewer calories per meal for adults
and adolescents and 600 or fewer
calories per meal for children
younger than 12 years.5 Most
restaurant offerings still exceed
the Dietary Guidelines for
Americans and other recommended targets for calories (£ 600
to 700 calories/meal), fat (£ 35%
total calories), saturated fat
(£ 10% total calories), added
sugars (£ 35% total calories), and
sodium (£ 210 mg to 410 mg/
meal item).5
US RESTAURANT
SECTOR PROGRESS
US chain and nonchain restaurants can make voluntary
changes by using comprehensive
marketing-mix and choicearchitecture strategies to normalize healthy options.
These include changes to place
(ambience and atmospherics),
profile (nutrient composition),
portion, pricing, promotion
(responsible marketing), healthy
default picks, priming or
prompting (information and labeling), and proximity (positioning;
bit.ly/2zGCTks).4
A US restaurant-sector progress evaluation (2016–2017) used
12 performance metrics developed from the recommended
nutrient targets for these eight
strategies. Results showed that
the restaurant sector made
ABOUT THE AUTHOR
PRESENCE OF
RESTAURANTS IN
AMERICANS’ LIVES
The National Restaurant Association, which is the major
Vivica I. Kraak is with the Department of Human Nutrition, Foods, and Exercise, Virginia
Tech, Blacksburg.
Correspondence should be sent to Vivica I. Kraak, Assistant Professor of Food and Nutrition
Policy, Department of Human Nutrition, Foods, and Exercise, Virginia Tech, 223 Wallace
Hall, 295 W Campus Dr, Blacksburg, VA 24061 (e-mail: vivica51@vt.edu). Reprints can be
ordered at http://www.ajph.org by clicking the “Reprints” link.
This editorial was accepted October 31, 2017.
doi: 10.2105/AJPH.2017.304217
AJPH
February 2018, Vol 108, No. 2
AJPH EDITORIALS
limited progress to use profile,
pricing, promotion, healthy
default picks, and priming or
prompting, and only some
progress to reduce and standardize portion sizes.5 Nutrientprofile changes examined in 18
out of 25 studies documented
either a modest or no reduction
in total calories to meet the recommended 700 or fewer calories
per adult meal or 600 or fewer
calories per child meal. Three
studies found that chain restaurants that had introduced new
items between 2012 and 2015
had 26 to 67 fewer calories. Few
restaurants have met the targets
for percentage of calories from fat
and saturated fat.5 Nine studies
showed either no reduction,
a modest decline, or an increase
in the sodium content of menu
items.5
CHILDREN’S MEALS
AND RESPONSIBLE
MARKETING
Restaurants that participated
in the National Restaurant Association’s Healthy Dining Kids
LiveWell Program were more
likely to have reduced children’s
entrees by about 40 calories per
meal between 2012 and 2014.
Nevertheless, less than 11% of
children’s meals met recommended healthy nutrition criteria
by 2013.5 Most chains used
marketing practices not covered
by voluntary pledges to target
children younger than 12 years,
and no pledges protect adolescents, aged 12 to 17 years,
from marketing of unhealthy
products.5
February 2018, Vol 108, No. 2
AJPH
Americans will accept healthy
default choices such as fruit or
vegetables instead of fries or
water instead of sweetened
soda.5 Between 2008 and 2016,
38 chains with children’s menus
had reduced sugary beverage
availability from 93% to 74%,
accompanied by modest replacement of water and low-fat
milk as default beverages.6 No
similar actions were taken by
restaurant chains to create
healthy defaults for adolescents
or adults. A separate 2016 Rudd
Center evaluation of six leading
quick-service restaurant chains
found that voluntary pledges to
offer healthy side dishes and to
remove unhealthy beverages as
the default for children’s meals
were implemented inconsistently at different restaurant
chains.7 Only McDonald’s,
Subway, and Panera had established fruits and vegetables as
healthy side dishes for children’s
meals by 2016.5 Pricing is a
powerful policy tool to address
population-based health disparities.4 Yet no major quickservice restaurant or fast-casual
restaurant chain has reduced
price promotions on large portions or used competitive or
proportionate pricing to encourage healthy purchases.5
LEADERSHIP TO
NORMALIZE HEALTHY
CHOICES
The underwhelming progress made by the US restaurant
sector demonstrates that the
National Restaurant Association and leading quick-service
restaurant, fast-casual restaurant,
and full-service restaurant
chains are not yet fully committed to change industry-wide
practices that drive poor diet
quality, obesity, and noncommunicable disease rates.
Mandatory menu-labeling law
is important but insufficient to
change social norms and customers’ expectations. Bold
leadership and technical assistance provided by the National
Restaurant Association and
leading chains could change
industry-wide expectations
and chain and nonchain restaurant practices to promote
healthy and profitable choices.
Civil society organizations and
citizens could use their purchasing power to demand
smaller and standardized portions and use social media to
hold restaurants accountable
for promoting healthy and affordable choices that establish
a healthy restaurant culture for
all Americans.
Vivica Ingrid Kraak, PhD, RDN
ACKNOWLEDGMENTS
Funding for this article was provided by
Virginia Tech’s Department of Human
Nutrition, Foods, and Exercise.
Restaurant Association; 2017. Available
at: https://www.restaurant.org/
Downloads/PDFs/News-Research/
Pocket_Factbook_FEB_2017-FINAL.
pdf. Accessed October 26, 2017.
3. Market Force Information. New study
from Market Force Information reveals
America’s favorite quick-service restaurants. 2017. Available at: http://www.
marketforce.com/consumers-favoriteQSRs-2017-Market-Force-research.
Accessed October 26, 2017.
4. Kraak VI, Englund T, Misyak S,
Serrano EL. Development of a novel
marketing mix and choice architecture
framework for the restaurant sector to
nudge customers toward healthy food
environments and reduce obesity in the
United States. Obes Rev. 2017;18(8):
852–868.
5. Kraak V, Englund T, Misyak S, Serrano
E. Progress evaluation for the restaurant
industry’s use of marketing-mix and
choice-architecture strategies to nudge
American customers toward healthy food
environments, 2006–2017. Int J Environ
Res Public Health. 2017;14(7):760.
6. Ribakove S, Almy J, Wootan MG. Soda
on the menu. Improvements seen but
more change needed for beverages on
restaurant children’s menus. Washington,
DC: Center for Science in the Public
Interest; 2017. Available at: https://
cspinet.org/kidsbeveragestudy. Accessed
October 26, 2017.
7. Harris J, Hyary M, Seymour N, Choi
YY. Are fast-food restaurants keeping
their promises to offer healthier kids’
meals? Hartford, CT: UConn Rudd
Center for Food Policy and Obesity;
2017. Available at: http://www.
uconnruddcenter.org/healthierkidsmeals.
Accessed October 26, 2017.
REFERENCES
1. Department of Health and Human
Services, Food and Drug Administration.
Food Labeling: Nutrition Labeling of Standard
Menu Items in Restaurants and Similar
Retail Food Establishments. Final Regulatory
Impact Analysis. Office of Regulations,
Policy, and Social Sciences. 2014. FDA2011-F-0172. Available at: https://
www.fda.gov/downloads/Food/
IngredientsPackagingLabeling/
LabelingNutrition/UCM423985.pdf.
Accessed October 26, 2017.
2. 2017 Restaurant Industry Pocket
Factbook. Washington, DC: National
Kraak
Editorial
159
AJPH EDITORIALS
CONTRIBUTORS
Both authors contributed equally to this
editorial.
ACKNOWLEDGMENTS
S. A. Bialous is partially funded by the
Tobacco-Related Disease Research Program, Mackay California-Pacific Rim
Tobacco Policy Scholar Award 25MT0033. S. A. Glantz’s work was supported
by National Cancer Institute grant CA087472.
S. A. Bialous serves as a consultant to
the Secretariat of the World Health Organization Framework Convention on
Tobacco Control, which promotes
ratification of the Protocol to Eliminate
Illicit Tobacco Trade.
Note. The funding agencies played no
role in the conduct of this research or
preparation of this editorial.
REFERENCES
1. Jha P, Marquez PV, Dutta S. Tripling
tobacco taxes: key for achieving the UN
Sustainable Development Goals by 2030.
Available at: http://blogs.worldbank.org/
health/tripling-tobacco-taxes-keyachieving-un-sustainable-developmentgoals-2030. Accessed October 20, 2017.
2. Mamudu HM, Hammond R, Glantz S.
Tobacco industry attempts to counter the
World Bank report Curbing the Epidemic
and obstruct the WHO Framework
Convention on Tobacco Control. Soc Sci
Med. 2008;67(11):1690–1699.
3. Bialous S. The tobacco industry and the
illicit trade in tobacco products. Prepared
for the Secretariat of the WHO Framework Convention on Tobacco Control.
Available at: http://www.who.int/fctc/
publications/The_TI_and_the_Illicit_
Trade_in_Tobacco_Products.pdf.
Accessed October 21, 2017.
4. Iglesias RM, Szklo AS, Souza MC, de
Almeida LM. Estimating the size of illicit
tobacco consumption in Brazil: findings
from the Global Adult Tobacco Survey.
Tob Control. 2017;26(1):53–59.
Prevention of Elevated Blood Lead
Levels Among Child Refugees and
Other Susceptible Populations
See also Kotey et al., p. 270.
The toxicity of lead and
its effects on child neurodevelopment have been well
documented for decades.1 The
dramatic decrease in average
blood lead levels in the United
States over the past several decades
is an undeniable public health
achievement. Over the same period it has been recognized that,
unfortunately, there is no safe
level of lead exposure.1,2 The
continued presence of lead in
water pipes, paint, and soils results
in continued elevated blood lead
levels (EBLLs) among children,
particularly those of lower socioeconomic status.3 Globally, many
nations are still using lead in industrial processes, gasoline, paint,
or consumer products.2 Thus, lead
exposure remains an important
health concern in the United
States and globally.
Refugee children have previously been identified as a population at high risk for lead
exposure,4 but there are still very
few data available on this topic.
The current global refugee crisis
has resulted in an increasing
February 2018, Vol 108, No. 2
AJPH
number of refugees, which underscores the need for additional
research in this area. For these
reasons, the report by Kotey et al.
(p. 270) in this issue of AJPH on
blood lead levels among refugee
children in Kentucky is timely
as well as important.
ELEVATED BLOOD
LEAD LEVELS IN CHILD
REFUGEES
Kotey et al. examined data
from refugee health screening
records to estimate the prevalence
of EBLL (> 5 mg/dL) and found
potential sources of lead exposure
among child refugees in Kentucky. They found that roughly
11% of refugee children had elevated blood lead concentrations
compared with approximately
0.36% of similarly aged children in
Kentucky. Kotey et al. were
highly creative in their ability to
identify variables in the data set
that could approximate different
exposure sources. They found
that an increased proportion of
EBLL was associated with
a shorter time between resettlement and health screening (suggesting non-US sources of lead
exposure). They also found an
interaction between having a US
residence in an area with older
housing stock and intestinal infestation (suggesting US sources
of lead exposure).
As noted by the authors, the
study does have some limitations.
Because the health screenings
were voluntary, selection bias
could have influenced the results.
Kotey et al. report that the
prevalence of EBLLs is roughly 30
times higher among refugee
children than among Kentucky
children, which suggests that even
if there is selection bias, it is likely
that refugee children experience
EBLLs at substantially higher rates
than do other US children.
5. Ministerio da Fazenda, Receita Federal.
Cigarros—Arrecadação de tributos federais. 2017. Available at: http://idg.
receita.fazenda.gov.br/orientacao/
tributaria/regimes-e-controles-especiais/
cigarros-arrecadacao-tributos-federais.
Accessed October 20, 2017.
6. Secretaria-Executiva da CONICQ.
Prevalência de tabagismo. 2017. Available
at: http://www2.in...
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