Amidst the controversy over Medicaid expansion and individual mandates, some other important provisions of the Affordable Care Act (ACA), also known as ObamaCare, have been overshadowed. One of these provisions requires calorie counts to be listed for all restaurants and vending machines with more than 20 locations.

The initial proposed regulation was issued in 2011. However, the final rules have been delayed and are not yet ready to be issued by the FDA. Because part of the law was self-executing (meaning regulatory guidance was not required), the law has already affected how many restaurants are printing menus with caloric and nutritional information for items. As a result many consumers have new information about what they are eating.

A Brief History of Nutritional Labeling

As early as 1906, laws were created that regulated how food and drink had to be labelled. Many of these laws were passed in response to misbranded and adulterated food, as well as deceptive and misleading claims about food and drink. By 1938, the FDA began to regulate food standards and impose inspections on factories. Still, however, the consumer was not aware of exactly what they were eating.

In 1950, the Oleomargarine Act required clear and prominent labeling of margarine, so that it could not be passed off as butter at a more expensive price. In 1958, a requirement was added to require all food additives to be declared. A series of additional regulations regarding food safety followed, but it was not until 1990 that food products were required to carry a nutritional label and meet certain standards before it could claim to be “light” or “low fat.” Between 2002 and 2004, additional regulations limited the uses of the label “organic” and required that common food allergens (such as eggs, soy, wheat, and tree nuts, among others) must be listed on the label.

As healthy eating programs continue to sweep the nation, restaurants and vending machines remain outside the fray. Restaurant meals can have a high-fat or caloric content with no warning to the consumer. The ACA sought to address this issue by requiring that restaurants and vendors of a sufficient size must disclose calorie information on the menu and clearly post on menu boards that additional health information would be available upon request.

The Effect of the Restaurant Labeling Regulation

As of this writing, the FDA has not issued final rules for how food should be labeled in restaurants and vending machines. The implementation of the regulation has been delayed multiple times. The biggest debate centers on which food retailers would be subject to the new law. Both consumers and the restaurant industry have powerful advocates and the FDA is sorting through over 900 comments on the issue, including comments pertaining to economic impact, as well as the feasibility of enforcement.

However, many restaurants have voluntarily started labeling, which has given consumers additional information even as the final ruling is debated. Some cities, such as New York City, already have calorie labeling requirements of restaurants. However, the ongoing delays mean that many consumers are eating food they may assume to be healthy, while the food is actually laden with hidden fat and calories.

Anytime a consumer has more information about what they are putting in their body, they are able to make more informed choices about what they eat. With the current focus on healthy eating, this will certainly put more pressure on restaurants with high calorie counts. Fortunately for the consumer, many restaurants are already providing calorie and nutritional information in anticipation of the FDA’s ruling. However, until the final rule is issued, some restaurants and vending machines will continue to hide the calorie counts of their food, to the detriment of the consumer.