Making Calories Count: A Critique and Reformulation of New York City’s Restaurant Calorie Labeling Mandate – Carissa Rodrigue

I. Introduction

The prevalence of obesity and being overweight has increased over the past several decades (1,2). Currently, 67 percent of U.S. adults are overweight or obese, and 34 percent are obese (1). The prevalence of obesity is even higher in certain population subgroups—for example, 54 percent of African-American females are obese (1).

An increase in meals consumed outside the home appears to be one factor contributing to the rise in overweight and obesity (3). The average adult consumes approximately 20 percent of all meals and more than 34 percent of all calories outside the home (4). Foods consumed at restaurants—particularly fast food and major chain restaurants—tend to be larger in portion size and higher in fat and calories than foods prepared and consumed at home (3,5). Almost 75 percent of all restaurant visits are to quick-service (“fast food”) restaurants, and about 50 percent are to major restaurant chains (6). A 2007 survey of customers at fast food chains in New York City found that 34 percent of customers purchased 1000 calories or more for their own meal (7).

Studies have shown that consumers greatly underestimate the caloric content of restaurant food, especially higher calorie foods (8,9). In one study, people underestimated the caloric content of common, less healthy restaurant foods by an average of 642 calories, and they underestimated the caloric content of cheese fries with ranch dressing (containing 3,010 calories) by more than 2,000 calories (8). Another study found that even professional dieticians have difficultly in accurately estimating caloric content; they underestimated caloric contents of common restaurant meals such as a tuna salad sandwich and a hamburger with onion rings by 220 to 680 calories (9). A 2005 national poll found that 83 percent of adults want nutrition information to be available in restaurants (10).

In December 2006, the New York City Department of Health and Mental Hygiene (DOHMH) passed the nation’s first nutrition labeling law applicable to restaurants (10). After a court found (in a suit brought by the New York State Restaurant Association) that the initial version of the rule was preempted by federal law, the City passed a revised rule in January 2008, which went into effect in May 2008 (10). The current rule requires restaurants that are part of a chain with 15 or more outlets nationally and serve standardized portions to post calories on all menu boards, menus, and display tags on food items (11). To raise awareness and increase the effectiveness of the mandate, the New York City DOHMH implemented an educational campaign called “Read ‘em before you eat ‘em,” which involved posting a series of five posters in subway cars for a three-month period in late 2008 (12). Three posters depict common fast food items (i.e., an apple-raisin muffin, a chicken burrito, or a fried chicken meal) and their caloric contents, and ask, “If this is lunch, is there room for dinner?” (13). Two posters compare the caloric contents of two meal choices (e.g., a tuna sub sandwich vs. a roast beef sub sandwich) and state, “Eat less. Weigh less.” (13). All five posters state that “2000 calories a day is all most adults should eat” and tell people to look for the new calorie postings (13).

Restaurant point-of-purchase nutrition labeling laws have also been implemented in King County, Washington, Multnomah County, Oregon, and Westchester County, New York (14). In addition, several states (Massachusetts, Maine, California, and Oregon), counties (three New York counties, three California counties, and Davidson County, Tennessee), and municipalities (Philadelphia) have passed restaurant nutrition labeling laws (14). The laws vary in terms of what information must be provided and what restaurants are covered (15,16). Bills and proposed regulations have been introduced in a number of other states and localities (14).

This paper focuses on New York City’s calorie labeling mandate. Section II of this paper presents three critiques of New York City’s mandate. Taking these critiques into account, Section III proposes and provides support for a reformulated nutrition labeling intervention, which also incorporates asymmetric paternalism and marketing theory.

II. A Critique of New York City’s Restaurant Calorie Labeling Mandate

This section argues that New York City’s calorie labeling mandate is flawed for three main reasons. First, the mandate assumes that food purchasing behavior is rational. Second, it fails to consider environmental and social factors influencing behavior. Third, it does not market its message using basic principles of advertising and marketing theory.

A. New York City’s Mandate Assumes Behavior is Rational

New York City’s calorie labeling mandate is based on the flawed assumption that consumers’ food purchasing behavior is rational. It assumes that if people are told the caloric contents of menu items, they will weigh the costs and benefits of choosing different menu items and will choose a lower calorie item.

New York City’s mandate is based on the Health Belief Model (HBM), which posits that a person will weigh the perceived benefits of taking an action (here, choosing a lower calorie item) against the perceived barriers to taking that action (17). Perceived benefit is a function of a person’s perceived susceptibility to the specific health problem that the behavior will prevent (e.g., obesity, Type II diabetes) and the perceived severity of the health problem (17). The outcome of the weighing process dictates a behavioral intention, which in turn dictates behavior (17).

Examining the use of perceived susceptibility and perceived severity to determine perceived benefits reveals problems with basing the calorie labeling mandate on the HBM. First, simply posting calories on a menu board or menu does little to cue people to their susceptibility to obesity and obesity-related diseases or to the severity of these health problems. It relies on the consumer to initiate a chain of thought about susceptibility and severity. However, the consumer may not engage in this chain of thought for a number of reasons, such as being under a time constraint, being distracted by companions, or being very hungry. Second, due to the optimistic bias—the phenomenon that people believe negative events are less likely to happen to them than to others—consumers are likely to underestimate susceptibility and severity (18). A person is more likely to be affected by the optimistic bias when the person perceives the event (e.g., becoming obese) to be controllable (4,18). As consumers likely believe their food choices are controllable, they may be unrealistically optimistic that they will not become obese or develop hypertension if they choose a calorie-dense meal of a hamburger, French fries, and a large soda.

Two other biases affect perceived benefits. The concept of present-biased preferences—the idea that individuals place disproportionate weight on present costs and benefits compared to future costs and benefits—undermines the success of the calorie labeling mandate (19). Consumers will give more weight to the costs of choosing a lower calorie item now, such as the healthier item not being as tasty, than they will give to the future benefits of improved health and disease prevention. Also, when the benefits of taking an action are measurable and tangible, individuals tend to be more motivated to take that action (19). Better health in the future is an intangible benefit (19) that may fail to motivate an individual to choose a lower calorie option now. Consumers can also rationalize that making a poor food choice just this one time will not cause obesity or heart disease; there is no clear link between the consumer’s single choice in isolation and negative health outcomes.

Present-biased preferences also impact an individual’s perceived barriers, or the negative outcomes an individual believes will result if he or she takes the action (17), because the costs of choosing the lower calorie option are immediate. Studies have shown that taste, price and convenience are more important than nutrition to fast food restaurant patrons (3,20). Choosing a low-calorie salad rather than a hamburger and French fries will have the immediate costs of not tasting as good (4,20), likely being more expensive, and not being as easy to eat while driving. Furthermore, these costs are tangible to the consumer. In summary, because a consumer deciding whether to order a lower or higher calorie meal will discount perceived benefits and place disproportionate weight on perceived barriers, the consumer will often form an intention to order the higher calorie meal.

Even assuming that an individual does form an intention to choose a lower calorie item, the HBM is flawed in assuming that a behavioral intention dictates actual behavior (17). A recent study of the influence of New York City’s calorie labeling mandate in low-income, minority communities detected no change in calories purchased even though 28 percent of persons who noticed the calorie labeling said that the information affected their food choices (21). Influencing whether an individual acts in accordance with his or her behavioral intention are a number of personal factors such as a hunger level, stress, and emotional state (22,23); social factors such as what foods one’s dining companions order and cultural norms surrounding food (2,23); and environmental factors such as the menu’s pricing structure (3), the availability of multiple healthy options, and the atmosphere of the restaurant. Environmental and social influences on behavior are further discussed in Part B below.

In contrast to the assumptions of New York City’s calorie labeling mandate, which is based on the HBM, behavior is irrational. Simply providing consumers with information and expecting them to use it to make a rational decision is unrealistic.

B. New York City’s Mandate Fails to Consider Environmental and Social Factors

The HBM, on which New York City’s calorie labeling mandate is based, assumes that individual decision-making takes place in a vacuum (17). The mandate fails to consider environmental and social factors influencing behavior (24). Thus, the mandate makes the fundamental attribution error, attributing behavior to some characteristic of the individual rather than to the context in which the behavior is made (25).

Environmental factors that influence food choice behavior include prices (3,20), the often limited number of healthy menu options (6), the idea that eating out is a time to indulge, time constraints (22), and the atmosphere of the restaurant (24). For example, distracting stimuli in the restaurant may affect food choice by limiting an individual’s ability to rationally weigh and deliberate on food choices based on caloric information posted on a menu board (24). Social factors influencing food choice may include the food choices of one’s dining companions and an individual’s cultural norms surrounding food.

The pricing structure at many fast food restaurants is an environmental factor that may strongly influence behavior. Price is an important factor in food choice (3,20). In one study, 40 percent and 43 percent of persons surveyed rated price as “very important” and “somewhat important,” respectively, in deciding what food items to purchase at a fast food restaurant (3). Study participants consistently ranked price as more important than nutrition (3). Another study comparing the effects of price decreases and health messages on the purchase of healthy items in a restaurant found that decreasing the price of healthy items significantly increased the purchase of these items but health messages were largely ineffective in doing so (20). While price is an important consideration for many people, it may have an even greater influence on the decisions of lower income individuals (20).

Accordingly, the value size pricing—where the per unit cost decreases as the portion size increases—employed at most fast food restaurants likely influences individuals to consume more calories by convincing price-conscious consumers to get more value for their money by purchasing larger meals (3). Additionally, the fact that healthier menu items, such as salads, are often more expensive than higher calorie items, such as French fries, may also influence food choice.

C. New York City’s Mandate Does Not Incorporate Basic Principles of Advertising and Marketing Theory

New York City has not marketed its calorie labeling mandate to consumers over much of the time this mandate has been in effect. The New York City DOHMH did implement a short-duration educational campaign—“Read ‘em before you eat ‘em”—from October through December 2008, which I will discuss below. Besides this short campaign, however, New York City has depended on consumers to notice the calorie information, consider this information against the number of calories they should be consuming daily, and use this information to make healthier food choices. This approach is problematic for several reasons. Many consumers do not even notice calorie information posted at the point-of-purchase (3,7). Some consumers are not aware that the average adult should be consuming only 2,000 calories per day. As discussed above, food purchasing behavior often is not rational. Furthermore, health and nutrition are not as important in individuals’ food decisions as are taste, price, and convenience (3,20). For all of these reasons, New York City’s failure to continue marketing its calorie labeling mandate compromises the effectiveness of this intervention.

The “Read ‘em before you eat ‘em” campaign that New York City implemented for a three-month period in late 2008 (12) failed to incorporate basic principles of advertising and marketing theory. The poster campaign, much like the posting of calorie information on restaurant menu boards, simply provides the consumer with numbers—the number of calories he or she should eat in a day and the number of calories in certain food items—and relies on the consumer to use these numbers to make healthier choices (13). It is therefore based on the assumption that behavior is rational.

The benefit that the “Read ‘em before you eat ‘em” campaign offers is health, which is not a primary influence on many individuals’ food choices (3) and is not one of the widely-held core values (26). The campaign fails to redefine the policy’s benefits in terms of basic and compelling core values such as control over one’s life (26). It also fails to package and position the policy so that it reinforces these core values (26). The “promise” (26) that the advertising campaign makes is that you will gain weight or have to forgo dinner if you eat the depicted high-calorie foods for lunch. This promise is not one that consumers want to hear, and it does not fulfill the target audience’s deep aspirations. The support—numbers and photographs of food—that the advertising campaign provides for its promise is weak. The advertisements do not use stories, strong visual images that appeal to core values, or metaphors to support its promise (26). Failing to incorporate basic principles of advertising and marketing theory makes New York City’s mandate much less effective in eliciting the desired behaviors.

III. A Reformulation of New York City’s Calorie Labeling Mandate

Taking into consideration these critiques of New York City’s calorie labeling mandate, this section presents a proposed intervention which addresses many of the flaws with the current mandate. Part A describes the proposed intervention, and Part B provides support for the intervention.

A. The Proposed Intervention

The proposed reformulation of New York City’s mandate is a multi-faceted approach that uses asymmetrical paternalism (19) and marketing theory (26) to supplement and bolster the posting of point-of-purchase calorie information at restaurants. As eating behavior can be very resistant to change (21), a multi-faceted approach may be needed to change behavior.

The proposed intervention retains the basic policy of providing consumers with point-of-purchase nutritional information at chain restaurants. Multiple surveys indicate that a demand for such information exists, with a 2005 survey finding that 83 percent of adults wanted nutrition information at restaurants (10). Several studies have provided some evidence that point-of-purchase calorie information may positively influence food choices (23). Also, providing point-of-purchase nutrition information is a relatively low-cost intervention, as the chain restaurants subject to the mandate would have conducted nutritional analyses of their standard menu items even absent the mandate (27).

The proposed intervention requires restaurants to provide not only calorie information but also information on the saturated fat, sodium, and sugar content of menu items. Similar to the nutrition labeling regulation in King County, Washington, the proposed intervention requires that menu boards contain not only caloric information but that the additional nutrition information be provided on the menus of full-service restaurants and on flyers or posters available at the point-of-purchase in fast food restaurants (16). Posting this additional nutrition information allows those consumers who are using nutrition information to make food choices to consider more comprehensive information in tailoring food choices to their particular health concerns (e.g., hypertension, diabetes).

The proposed intervention also acknowledges that many consumers do not use the posted nutritional information to make food decisions, do not behave rationally, and are influenced by multiple environmental and social factors. To address these issues with point-of-purchase nutrition labeling, the proposed intervention uses two primary techniques—asymmetric paternalism (19) and marketing theory (26).

Asymmetric paternalism is an approach to public policy that changes behavior by “nudging” (28) individuals to behave in a desired way (19,29). It is paternalistic in that it helps individuals to accomplish their own goals (19,29). It is asymmetric in the sense that it helps individuals who are behaving in an irrational, self-destructive manner but it does not affect the decisions of individuals who are already making informed, rational, self-interested decisions (19,29). Another important aspect of asymmetric paternalism is that it shifts behavior without depriving individuals of the freedom to choose (19,29).

The proposed intervention incorporates several asymmetrically paternalistic measures. First, the intervention would decrease the prices of healthier options, raise the prices of less healthy options, and eliminate the value size pricing that drives consumers to purchase larger portion sizes (3). Second, the intervention would make the default beverage in value meals a bottle of water, requiring a consumer who wants a soft drink to specifically request one as a substitute (19). Finally, the intervention would increase the convenience of items healthier options by requiring healthier menu items to be positioned before less healthy items on menus. The justifications for each of these asymmetrically paternalistic measures is provided in Parts B.1 and B.2 below.

Based the restaurant industry’s opposition to New York City’s current calorie labeling mandate (10), it is likely that the proposed asymmetrically paternalistic interventions will be met with resistance from the restaurant industry and thus will be difficult to implement. Therefore, consideration must be given to practical aspects of implementation, such as whether legally mandating the changes or working with restaurants to voluntarily implement them would be a more effective strategy.

Another major component of the proposed intervention is a marketing campaign by the New York City DOHMH that would market the nutrition labeling policy to consumers by appealing to core values, making a promise that fulfills deep aspirations, and supporting the promise with compelling stories, images, and metaphors (26). The proposed marketing campaign would aim to reach the target audience through multiple media channels—a poster campaign in subway stations and other prominent public places, local television, and the internet.

The core values to which this marketing campaign will appeal are physical attractiveness, control, and fairness. It will not focus on improved health as the benefit. One set of advertisements will promise that if you choose a delicious and nutritious option from the menu, you will be physically attractive. These advertisements will support this promise with images of beautiful, slender, athletic people and stories about their happy and fulfilling lives. A second set of advertisements will suggest that major restaurant chains have been deceiving consumers into believing that their foods are healthy when in fact they are high in calories, saturated fat, and sodium. These advertisements will present the restaurants’ cover-up of the unnecessary calories, fat, and sodium as being unfair to consumers and depriving consumers of control over their lives. The advertisements will promise that by using the posted nutritional information to choose healthy options, consumers are fighting the restaurants’ unfair behavior and gaining control over their own destinies. The advertisements will use compelling images and examples to support this promise.

B. Support for the Proposed Intervention

1. The Proposed Intervention Acknowledges that Behavior is Irrational and Uses Asymmetrical Paternalism to Nudge Consumers into Making Better Decisions

As described above, the proposed intervention includes several asymmetrically paternalistic components. In incorporating asymmetrical paternalism, the intervention recognizes that behavior is irrational and nudges individuals who would have otherwise chosen an unhealthy food item to choose a healthier option instead.

To address the default or status quo bias—i.e., the tendency to choose the “default” option or stick with the status quo—the proposed intervention would make the default beverage in fast food restaurants’ value meals a bottle of water rather than a soft drink (19,30). A consumer who wanted a soft drink instead would specifically have to request it (19,30). Making water the default option would nudge some consumers into drinking water rather than soda. Similarly, the intervention would eliminate the automatic use of high-calorie, high-fat condiments (e.g., mayonnaise, ranch dressing) on sandwiches and only include these condiments if the customer specifically requested them. Many consumers would accept the default option and thus be nudged into a healthier food choice.

Because restaurant patrons may be under time pressures, distracted, or looking for the most convenient option (22,24), the proposed intervention would require that healthier food items be positioned before less healthy items on menu boards and menus. This asymmetrically paternalistic action will increase the number of people who choose healthier items simply because doing so is easier or more convenient than reading through many menu options to get to the less healthy items. Increased convenience of choosing healthier foods may also partially counteract the problems caused by present-biased preferences, by lowering current costs, one of which is inconvenience (19,30).

In recognizing and addressing irrationalities in behavior, the asymmetrically paternalistic components of the proposed intervention nudge individuals to make health-promoting decisions. Irrationalities in behavior are also addressed by the proposed marketing campaign, which is discussed in Part 3 below.

2. The Proposed Intervention Considers Environmental and Social Influences on Behavior and Addresses Them Using Asymmetrical Paternalism

An important environmental factor influencing food choice is the pricing structure of restaurant menus (3,20). This factor may be particularly important for lower income individuals. The proposed intervention considers the influence of price on behavior and uses asymmetric paternalism to take advantage of this environmental factor by decreasing the prices of healthier menu items and raising the prices of unhealthier menu items. The intervention also proposes to eliminate value size pricing, which often causes value-conscious consumers to choose larger portion sizes (3), and replacing it with a uniform per-unit pricing structure. By manipulating prices, the proposed intervention uses this important environmental factor to nudge consumers into making healthier choices.

The proposed intervention’s requirement that healthier options be listed before less healthy options on menus and menu boards also takes advantage of environmental and social influences on behavior such as distracting stimuli in the restaurant. When a customer is absorbed in a conversation with companions or distracted by other happenings in the restaurant, the customer may not have the time or desire to consider the full menu. Reading from the top of the menu down, the customer would see the healthier options first and may choose one of them before even reading down the menu to the less healthy items. This strategic placement of items on menus is a nudge towards making healthier food decisions. Environmental and social factors are also addressed by the proposed marketing campaign, described in the following section.

3. The Proposed Intervention Incorporates Principles of Advertising and Marketing Theory to Address Irrational Behavior and Sell the Product

The proposed intervention’s strategy of incorporating a longer-duration marketing campaign recognizes that if nutrition information is simply posted at the point-of-purchase, some consumers will not notice the information and others will not know how to make use of it because of unawareness of recommended daily calorie budgets. The proposed marketing campaign also uses multiple media channels to reach a wider audience than that reached by the “Read ‘em before you eat ‘em campaign.”

The proposed marketing campaign also recognizes that food purchasing behavior often is irrational. In making a food choice, consumers frequently do not weigh the costs and benefits of choosing different food items. Even if a consumer does engage in a weighing process, the process may be affected by a number of irrational biases, including the optimistic bias, the status quo/default bias, present-biased preferences, and intangibility. Additionally, visceral, environmental, and social factors can result in unplanned, spontaneous, and irrational behaviors. To get consumers to choose healthier options despite these irrationalities and external influences, the advertisements convince consumers that the simple action of choosing a healthier food item will yield huge benefits—specifically, looking good and being in control.

The proposed marketing campaign also recognizes that because health and nutrition are not the most important factors to most consumers (3), the benefit should not be framed in terms of health. Rather, the message should be reframed to appeal to widely-held core values—here, physical attractiveness, control, and fairness. By making large promises that choosing healthier foods will make you physically attractive, let you triumph over restaurants’ unfair behavior, and put you in control of your own destiny, and by supporting these promises with compelling images and stories, the proposed marketing campaign will help to convince consumers to make healthier food choices.

IV. Conclusion

New York City’s current calorie labeling mandate is unlikely to be effective in promoting healthier eating and addressing the obesity epidemic. This is because the mandate is flawed in assuming behavior is rational, not considering environmental and social influences on behavior, and failing to market its policy using basic principles of advertising and marketing theory. With several modifications, including the addition of asymmetrically paternalistic measures that nudge consumers into choosing healthier foods, as well as a marketing campaign that appeals to consumers core values, New York City’s mandate will go a long way towards achieving its goals.

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