Tennessean Column 4/1/2010

Labeling is just more government control


Last year, I passed an anti-menu-labeling bill that was subsequently vetoed by the governor. We overrode the veto in the House and Senate after reconvening in January, which put the law into effect in Tennessee.

As chairwoman of the American Legislative Exchange Council's Commerce Task Force, a national state legislator organization, I proposed and passed anti-menu-labeling model legislation for the states.

Now we learn that the federal health-care bill contains menu-labeling dictates for restaurant menus, menu boards, drive-through displays and vending machines. A few local and state governments have similar regulations. The evidence varies about whether menu labeling is effective.

Regulation will cost consumers

Some studies show that as few as one in six consumers actually use the information to make purchasing decisions. Harvard University removed menu-labeling information in its dining halls in the fall of 2008 due to concerns from parents and friends over students who developed eating disorders. As a result, other schools have avoided the idea altogether.

What can't be legislated are the motivations of consumers; for instance, another study showed that consumers significantly increased total energy, fat grams, carbohydrate grams and decreased protein and energy from protein when exposed to menu labeling information. It seems that people become overly concerned with calorie information rather than the more important matters of nutrition and variety.

Just as concerning as the misuse of information is the great monetary cost that consumers must suffer. Replacing menus, menu boards and handouts and testing food is expensive. Determining the number of calories in a food item is a matter of science — the food must be burned and the amount of heat it emits determines its calories. In several states the requirement has opened restaurants up to class-action lawsuits due to claims of inaccurate calorie and nutrition counts.
There are loopholes; menu specials, custom orders and ingredient substitutions are exempted —for now.

But where is the principle that allows the federal government to impose such a mandate on restaurants?

The fault is mainly due to a modern misinterpretation of the Commerce clause of the Constitution. Until roughly 1942, the Commerce clause was well understood to be a power of the federal government used only to remove impediments to trade between the states — such as tariffs charged by one state on goods moving through to another state. The idea was to limit state legislatures from restricting trade between each other, thus allowing consumers and merchants freedom to trade. It was never to allow the federal government to decide what commerce will be legal or not legal or what regulations will apply to trades and services.
In addition, such regulations are simply not anywhere part of the federal government's 30 enumerated powers. Further, there must be a constitutional violation of rights in order for government to force us all to incur such expense. What right is being secured by the imposition of menu labeling?

Is it even likely that anyone unschooled on proper diet will even appreciate the information on a menu board? Would not those that already understand know proper choices? Certainly people of good conscience are not fooled by their own purchasing decisions. Federal menu labeling is more big government control.

http://www.tennessean.com/article/20100401/OPINION01/4010331/1007