Constitution Check: Does the government have the authority to write restaurant menus?

Lyle Denniston

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, tackles a weighty issue: the FDA’s constitutional ability to mandate calorie counts on restaurant menus nationwide.

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THE STATEMENT AT ISSUE:

“The U.S. Food and Drug Administration today finalized…rules requiring that calorie information be listed on menus and menu boards in chain restaurants [and] similar retail food establishments….The menu labeling final rule applies to restaurants and similar retail food establishments if they are part of a chain of 20 or more locations, doing business under the same name and offering for sale substantially the same menu items. Covered food establishments will be required to clearly and conspicuously display calorie information for standard items on menus and menu boards, next to the name or price of the item. Seasonal menu items offered for sale as temporary menu items, daily specials and condiments for general use typically available on a counter or table are exempt from the labeling requirements.”

– Excerpt from a public announcement by the FDA on November 25, describing new rules that require restaurant chains to tell their customers about the calories they are consuming. On the same day, EPA also put out new rules for calorie counts on food packages sold by vending machines. Congress in 2010 had ordered the EPA to write all of those rules as part of the new federal health care law, the Affordable Care Act.

WE CHECKED THE CONSTITUTION, AND…

Chances are, the early American generation that started the tradition of a hopefully bounteous Thanksgiving dinner – and wrote a new Constitution to govern the nation – had no idea that, one day, there would be an “obesity epidemic” that the government would feel obliged to stop.   The Constitution-writers left deliberately vague just what they were allowing Congress to regulate as “commerce among the several states,” in the wording of Article I, Section 8. They knew that “commerce” would change, in unpredictable ways.

Now, long after Congress began exercising parental instincts in attempting to assure that the nation’s food supply is healthy (even if many of its citizens are not), it may seem very much out of date to ask whether the Constitution puts some limits on how far food controls will be allowed to reach.

But in an era of widespread suspicion that Big Government is reaching too far into Americans’ private lives (recall the deep controversy over the Affordable Care Act’s mandate for everyone to buy health insurance even if they didn’t want it), that is very much a current source of worry, at least in some sectors — and particularly among some conservative constitutional scholars.

At the Food and Drug Administration this week, in the kind of announcement that stirs up such worries, it told the nation about how the government will be reaching into the nation’s restaurant chains to dictate what they say about the weight-affecting contents of their regular menu items (Thanksgiving turkey, apparently, will be exempted as a seasonal item, as also will plum pudding with brandy at Christmas time).

The announcement, though, came with hardly any justification of its constitutional authority to do that.   The FDA clearly operates on the assumption that it has authority from Congress to do what it is doing, and thus silently assumes that it must be acceptable under the Constitution’s Commerce Clause.  The agency noted that it has had authority from Congress since 1990 to require nutrition labels on food, and that the Affordable Care Act extended that authority to restaurant menus and vending machines.

Restaurant food, of course, does contain ingredients that move across state borders, so it is an item that might be thought covered by the regulatory power granted by the Commerce Clause.

But the underlying policy rationale for this new regulatory regime appears to be something more than the interstate movement of, say, the potatoes that become French fries. The use of the phrase “obesity epidemic” in some of the agency’s policy statements is a clue to what it is thinking. By labeling the problem of an overweight America as similar to some other form of social menace, it places its authority over restaurant menus in the same category, for example, as the marketing of carelessly compounded drugs or of cancer-causing tobacco.

It may be that a child entering a fast-food restaurant will be quite unaware of how fattening that experience may potentially be, but it can hardly be a surprise to any adult who has paid even the slightest attention to the media blitz over obesity.   At least for a good many people who indulge in fast food, it is a matter of consumer choice.   The government, presumably, has the authority to try to influence that choice, but no one is likely to suggest that the government could constitutionally close down the restaurant chains to give it even more influence.

The FDA, no doubt, is convinced that it is not substituting its regulatory judgment for the tastes of the American food consumer.   But of such assumptions is constitutional controversy born. It was not long ago that the Affordable Care Act was mired in such controversy as its critics likened its insurance mandates to compelling Americans to eat broccoli. Eating healthy, it seems, is a matter of private choice – even as a constitutional matter.

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