The FDA May Make Too Many Pizza Toppings a Crime

May 3, 2017 Topic: Politics Blog Brand: The Buzz Tags: PizzaFoodLifestylePoliticsGovernmentEconomics

The FDA May Make Too Many Pizza Toppings a Crime

Yes, you read that right. 

Jenny Craig can’t arrest you if you miscount your calories, but the federal government could if a new calorie-counting rule takes effect.

The U.S. Food and Drug Administration’s “Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments” ( 79 FR 71155 ) rule is scheduled to take effect on May 5. The 105-page rule implements Obama-era amendments to the Federal Food, Drug, and Cosmetic Act ( FD&C Act ), which sets national standards for the marketing and labeling of food products.

The rule will require, among other mandates, that all restaurants and other retail food outlets, such as movie theaters, operating as one brand with at least 20 stores display a calorie count in addition to other nutritional information for all standard menu items on the establishment’s “menus and menu boards.”

To demonstrate the potential scope of that provision, Lynn Liddle, a former executive vice president at Domino’s Pizza, said, “‘Menu’ can refer to any writing that [is] ‘used by a customer to make an order selection at the time the customer is viewing the writing’”—possibly including flyers and other advertisements.

Jenny Craig can’t arrest you if you miscount your calories, but the federal government could if a new calorie-counting rule takes effect.

The U.S. Food and Drug Administration’s “Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments” ( 79 FR 71155 ) rule is scheduled to take effect on May 5. The 105-page rule implements Obama-era amendments to the Federal Food, Drug, and Cosmetic Act ( FD&C Act ), which sets national standards for the marketing and labeling of food products.

The rule will require, among other mandates, that all restaurants and other retail food outlets, such as movie theaters, operating as one brand with at least 20 stores display a calorie count in addition to other nutritional information for all standard menu items on the establishment’s “menus and menu boards.”

To demonstrate the potential scope of that provision, Lynn Liddle, a former executive vice president at Domino’s Pizza, said, “‘Menu’ can refer to any writing that [is] ‘used by a customer to make an order selection at the time the customer is viewing the writing’”—possibly including flyers and other advertisements.

“We no longer know what a menu is,” Liddle said, to point out how confusing the rule is.

When an executive of a major national corporation can no longer ascertain the meaning of the word “menu,” a rule has problems.

During the rule’s notice-and-comment period, some food purveyors raised concerns “that restaurants that ‘unwittingly misbrand their menu offerings’ will be held liable for their food that is misbranded under this rule and related provisions of the FD&C Act.”

The FD&C Act makes misbranding a criminal offense punishable by imprisonment up to one year and a fine of up to $1,000, with more severe sanctions for repeat offenses ( 21 U.S.C. § 333 ).

Industry representatives also pointed out that restaurant owners and supervisors can be held criminally liable for FD&C Act violations under the so-called “responsible corporate officer doctrine.” That stems from a U.S. Supreme Court case, United States v. Park (1975) , in which the court upheld a retail food chain president’s criminal conviction for food safety violations that occurred on his watch.

An FDA spokesperson said that the agency will spend the rule’s first year on education, not enforcement, but that offers little comfort to market participants.

Chris Reisch, a Domino’s franchise owner in Kentucky who started out as a delivery man, explained, according to The Washington Free Beacon, “To face one year in prison for putting too many pepperonis on a pizza? Everybody laughs and smiles, but that’s the reality of the way it’s written now.”

As if extra pepperonis wouldn’t be a welcome surprise!

The FDA would require pizza providers to display calorie counts on a per serving (slice) basis, which poses a particular problem for proprietors who offer customers significant choice on their regular menu.

Domino’s, for instance, offers customers a selection of 27 regular toppings and nine sauces on five types of crust. All told, there are 34 million potential pizza combinations one could order from Domino’s. Whether a customer adds double pepperoni or mushrooms to their customizable pie can make a significant difference in the calorie range of each pizza.

According to the American Pizza Community —a lobbyist group that advocates on behalf of 20,000 pizza restaurants nationwide—no two slices are alike. This creates significant variance in calorie estimates across pizzas.

Tim McIntyre, an executive vice president at Domino’s Pizza, said that if workers “are heavy handed with cheese or pepperoni, and a pizza doesn’t meet standards and is outside of the range of the nutritional labeling, then that could be a store manager liable for a criminal penalty. And that’s absolutely ridiculous.”