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Tales of the Red Tape #34: FDA Invades Piggly Wiggly

Posted By Diane Katz On June 27, 2012 @ 4:17 pm In Economics | Comments Disabled

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Today we examine a proposed regulation that would require some 47,000 grocery stores nationwide to post calorie and other nutrition information each day for the ever-changing array of foods prepared on site, such as the salads, dips, and tropical whips so common to the deli case.

Details about the rule [2] have been published in the Federal Register (Vol. 76, No. 66) under the entry titled “Nutrition Labeling of Standard Menu Items at Chain Restaurants.”

It would be entirely reasonable to wonder how and why the proposed grocery store mandate has been slipped into a regulation targeting chain restaurants. Indeed, the statute giving rise to the regulation—Obamacare—makes no mention of Kroger, Safeway, or their ilk. Well, grocery store operators are wondering that, too, given the millions of man-hours and dollars it will cost them if the rule is finalized—costs that will ultimately be borne by consumers.

Alas, neither regulatory restraint nor rationality is a common characteristic of the bureaucrat skill set. In this case, the Food and Drug Administration (FDA) is defying congressional intent with unapologetic audacity. Just like President Obama, by golly!

In fact, the statutory text specifies labeling standards for “restaurant or similar retail food establishment.” In order to rope grocery stores into its regulatory grasp, the agency has redefined restaurant to be “where the sale of food is the primary business activity of that establishment.” According to the FDA, this definition “fits best with the natural meaning of the language and its proper scope.”

Huh?

Grocers are rightfully concerned about the looming regulatory burden. Unlike chain restaurants, where menus are often set by a central office and remain constant for extended periods, the freshly prepared foods at grocery stores change daily based on the availability and freshness of products. For example, a basic fruit salad may feature very different elements from one day to the next. And each different combination would require a separate nutrient analysis—at an average cost of about $300 each.

Most Americans might assume—naively, it turns out—that the government has at least some idea about the utility of the proposed rule. In fact, the FDA acknowledges that “it has not estimated the actual benefits associated with the proposed requirements.” According to the regulatory proposal, “FDA is unaware of any comprehensive data allowing accurate predictions of the effect of the proposed requirements on consumer choice and establishment menus.”

What we have, then, is a regulation that will, at the very least, reduce the availability of fresh foods at grocery stores—despite the Obama Administration’s relentless badgering of us to eat more fruits, vegetables, and other unprocessed foods. More likely, the price of these fresh offerings will weigh heavier on household grocery bills at a time when food prices are already running higher than average.

Consumers are already living with a rash of food prohibitions and unparalleled nannyism. The FDA should not be allowed to extend this interference even more.


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URL to article: http://blog.heritage.org/2012/06/27/tales-of-the-red-tape-34-fda-invades-piggly-wiggly/

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[1] Image: http://blog.heritage.org/wp-content/uploads/piggly.jpg

[2] rule: http://www.gpo.gov/fdsys/pkg/FR-2011-04-06/pdf/2011-7940.pdf

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